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The Privacy Judgement

  9/23/2017 9:18:48 PM

The Privacy Judgement

The “Justice KS Puttuswamy Vs Union Of India”,  judgement delivered by a nine Judge bench of the Supreme Court on 24th August, 2017 has more to it than meets the eye. Better known as the  “Privacy Judgement”, it would not be wrong to say that the judgment is amongst five most important ever delivered by the Indian Supreme Court. Like the Keshavnand Bharti case, its impact will be far reaching for decades to come as it will decide how  democracy in our country develops and evolves. As a lawyer friend recently said, I know what it says, but what’s all this fuss about privacy. He has a point, in that it seems to have originated about something as prosaic as the manner of usage, and protection of identities of citizens in the UID (Read Adhaar) Project. The government held in the supreme court that reservations about privacy were primarily an elitist concern in India and were uncalled for, nor could privacy be elevated to the status of a fundamental right. What seemed a minor niggling issue has evolved into something much bigger, primarily because the issues that needed to be addressed by the court in “Adhaar” are fundamental and part of a larger issue,  “to what extent the freedoms guaranteed in part III of the constitution can be curtailed by government control and legislation”.  

Democracy can be said to be a continually evolving balance between individual human liberty and government control. Given the rising concerns about security due to global terrorism, economic frauds, rising influence  of social media, increasing incidences of corruption, governments feel they do have a legitimate right to intrude and take a peek into how many of us live our lives, be it our unique identification, biometrics, details of our properties, whom we talk to, sexual predilections, our internet habits et al. Pick a freedom and there is an argument to whittle it down.  The very freedoms democracies guarantee can also be used to knock them down. No wonder then that democracy is such an excruciatingly difficult system of governance. For a state to counterbalance and protect individual human freedom with increasing government controls (often in the name of the security of the state) can be a fiendishly difficult task.  

India is at a stage of Political and economic evolution, where the questions about liberty, freedom and privacy have assumed paramount importance. The government did feel (and at times rightly so) that individual privacy and freedoms had to be pared down, for proper implementation of government policies, to mitigate the threat of terrorism, to reduce corruption and make the lives of citizens more secure. Civil activists on the other hand also rightly felt that the precedents set in the Aadhaar Case will be used to increase government monitoring of citizens, increase state surveillance and data collection in virtually every sphere of life and impinge upon privacy and civil liberties of the individual. The question for the court was what will preponderate over the other. The judgement has clearly gone in favour of the individual protecting his rights and liberties as enshrined in the Constitution. It curtails government controls, in so far as they seeks to encroach upon Individual human liberty and freedom

The unanimous verdict of the nine judge bench elevates the right to privacy to the status of a Fundamental right by holding that “Privacy”  is a species of the right to protection of life and personal liberty enshrined in article 21 of the Constitution.  The judgement is in fact a vision for the kind of democracy that India will evolve into. What it makes clear is that the Individual Human Rights cannot be subsumed by arguments about threats to the state. It is the individual that is the most important component of the state and his rights of privacy cannot be fettered by any government controls, legislative or executive, except in the rarest of exceptions.

In line with the best democracies of the world and the finest political philosophers, the ruling gives the individual a pre eminent position, that perhaps till now had remained a grey area. In India the disquieting argument that had been  gaining ground over the last few decades was, that the interests of the few can be sacrificed at the altar of the many. The ruling has extremely important implications for, state surveillance, data collection, the rights of the minorities, and fringe groups who have virtually no political clout to make themselves heard.

The judgment settles the law for a long time to come, that the liberties of an individual  cannot be tinkered with by lawmakers and are paramount. It demolishes the argument of the government that privacy was only an elitist preserve and it did not matter to most. The court took the view that while privacy may matter more to some, than to others, it existed nevertheless. The principles expounded  in the judgment cannot  be thrown out by mere legislative amendments or enactments.  It puts a cap on the propensity of increasing government control over individual lives. How intrusive the government becomes will govern in large part how many of us live our lives. A state that has too much control over the lives of its citizens, ceases to be a democracy. It draws a line in how far a government can go. It stands up for those who are in a minority, those who are non conformists, those who cherish their freedom and privacy and those whose voices the state would rather choose to ignore.


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