Indians deserve their right to privacy

Live Mint: Salil Tripathi: New Delhi: Friday, August 11, 2017.

On the day after the 75th anniversary of Mohandas Gandhi’s call to the British to quit India in 1942, and in the week before India celebrates the 70th anniversary of its independence in 1947, there are a few points worth recalling as the Supreme Court deliberates over whether privacy is a fundamental right.

First, that the Indian state is the creation of the Indian people; the state did not create the people. It exists to serve the people. The Constitution was written by the people and given “to ourselves”. The state is the instrument; its job is to respect, protect and fulfil the people’s rights—and those are rights, not privileges that the state has granted.

These obvious axioms need to be stated again, given the political discourse, where the state has continued to grow, and wants to tighten and strengthen rules to govern Indian lives—what they can read or see, what they can say, what they can eat, who they can love or marry, what they can buy, and by what time they must return home every night. The state will watch you.

All those rules infringe on the right to privacy. Those who invoke that right are ridiculed as idealists, as anti-national, or as if they have something to hide. There is no word for “privacy” in any Indian language, it is asserted. That may well be the case—the words that immediately come to mind in some Indian languages describe secrecy, not privacy. But, goes the argument—if you have nothing to hide, why keep things secret?

Cultural norms are invoked too. Go to most public hospitals, where a harassed doctor is explaining a patient’s prognosis to an anxious family. The conversation often takes place in a waiting room, and people who have no business to listen will crowd around to listen. You travel in a long-distance train, and soon enough other passengers will want to know everything about you, some even telling you things about themselves that you don’t wish to know.

As Pico Iyer observed in Video Night in Kathmandu (1988): “Though India had a hunger for absoluteness, it swarmed with relatives”, and the notion of “relatives” is ever-expanding. The individual’s identity is subsumed within the collective. We are all one Hindu Undivided Family, and the karta knows the best.

Such cultural explanations are diversionary. Privacy is ultimately about choice and consent—what you choose to reveal and what you prefer to keep to yourself. Not revealing everything about yourself to others should not be a crime. It is worth noting that the right to privacy is respected selectively, which shows how the privacy of some—usually those with resources—is accepted, but the privacy of others—usually the poor—is not.

We keep certain things private because those matters concern only us. But everyone doesn’t have the luxury of choosing. Those with power often resent calls for greater transparency—loan defaulters, politicians, senior officials—including complying with right to information requests, on grounds of privacy. But the right diminishes in value while delivering welfare services. And who needs welfare? Not the rich. And the poor’s privacy is to be discarded in the name of “efficient” delivery of services. Think of manual scavengers, the homeless, victims of the Bhopal gas disaster, the disabled, or children entitled to mid-day meals. The list can go on.

What ought to be a fundamental right is being applied selectively, where some enjoy that right, others don’t. It means the government decides the priority of rights—which right is important (say, food) and which isn’t (privacy).

The manner in which the use of Aadhaar is being made mandatory (despite court orders saying it should not be) erodes the right further. It is becoming necessary to perform any transaction, even in doing business with private companies. Opting out is not a choice. From 1 October, the home ministry says a death will only be registered if the deceased individual’s Aadhaar number is provided.

The right to privacy affirms the inherent dignity of the individual. Without it, the individual becomes identifiable, searchable; a number, his identity inseparable from that number. Shorn of individuality, he or she becomes a commodity.

During the hearings in May in the Aadhaar case, the then attorney general, Mukul Rohatgi, said: “There is no absolute right over the body.” Then citing Jean-Jacques Rousseau, he said: “The state is like a corporation. Individuals are members of a corporation. From the cradle to the grave we are in a contractual relationship with the state… You want to be forgotten, but the state doesn’t want to forget you… You have no right to be invisible… We will go to DNA next.” That was an astonishing assertion; almost as extraordinary as what the late attorney general Niren De had argued during the Emergency in the habeas corpus case: that the courts were helpless even if life was taken away illegally.

Describing Aadhaar as “an electronic leash” that tags and tracks individuals, senior advocate Shyam Divan invoked dignity under Article 21 of the Constitution and pointed out that if a citizen knows that he is under surveillance, he may have legitimate concerns about what he can say and do, which would adversely affect his right to participate in the political affairs of the state. As he put it, “Aadhaar completely takes away your political and personal choices.”

Indians need to rethink their relationship with the state. Violating privacy undermines dignity and liberty. That alone is the reason to affirm the right.

Salil Tripathi is a writer based in London.