Surveillance can wait, privacy is a fundamental right!

Sequence of Events

“Aadhaar violates the Right to Privacy.”

~ Petitioners to Supreme Court

“No it doesn’t because citizens have no fundamental Right to Privacy.”

~ ex-Attorney General Mukul Rohatgi, speaking on behalf of the Central Gormint

“The court must determine whether privacy is a Fundamental Right or not.”

~ Petitioners to Supreme Court

“Let’s do that. We refer it to a 9-judge bench. They will answer this important koschan.”

~ Supreme Court

Time warp to Thursday, August 24, 2017

“Privacy is a Fundamental Right. Here, take this 547-page long judgment which clarifies what Right to Privacy actually means.”

~ Supreme Court

“YAZZZZ! #PrivacyIsARight”
~ Petitioners, clearly overjoyed

“We’ve always said that Privacy is a Fundamental Right, ya know.”

~ Union Minister RS Prasad

That is, to put it simply, all that has happened. We had a Right to Privacy, government said no, so the Supreme Court reiterated that we do. Not just a right, Privacy is a Fundamental Right.

Let us break it all down piece by piece in this piece.

Aadhaar & Privacy

Aadhaar has teething problems. These are becoming very obvious if you follow the news about how it is being implemented. Apart from implementation, the Aadhaar Act has basic legal problems too. I have written about the problems with the Aadhaar Act (“The Aadhaar Act: Why You Should Panic”) and the Rules made under the act (“The Power of Babus”) before. Another major worry surrounding Aadhaar is its violation of our Right to Privacy.

How? Surveillance.

Your skeptical brain might think: “Oh but that’s ridiculous! How would the government do surveillance?”

Quite easily now, actually. Your Aadhaar is getting linked to your bank account, your PAN number, your mobile phone and much much more in the future. In the words of the UIDAI CEO, it allows 360-degree profiling of a citizen. Aadhaar, by itself, might not give any information other than your name, birthdate, address, and photograph, but it becomes a singular unique identifier on top of which much data can be collected enabling any government to profile you.

Your skeptical brain says: “Haan so that’s alright. I have nothing to hide & only the people who do illegal shit will get into trouble.”

Sure. But think about the fact that you will be constantly watched. It would be assumed that you are criminal unless until proven otherwise because only criminals are watched constantly. Think of it as if there is a camera in your bedroom, recording 24×7. Would you dance around in your underwear (I know you do sometimes, you naughty reader you!) when you know that there is someone watching?

Skeptical Brain: “Oh so you’re saying someone will keep a track of me all the time? Pfft. They don’t have enough manpower to watch every citizen!”

Two things here: Even if nobody is watching you in your bedroom at this point of time, you will always be aware of the camera. It will change your behaviour. It will make you censor yourself at the get go. Similarly, if you are someone who wants to write a funny anti-government WhatsApp forward, you will think twice before doing it.

Paranoid Brain: “What if they find out? What if someone in the Whatsapp group sends a screenshot to the police?”

Then, Aadhaar will make it easier for the government to mess with your life. They know accurately who you are, what is your bank account number, what is your mobile number and probably, very soon in the future, which plane you’re getting on to escape.

Pondering Brain: “Hmm. I’m listening. So what has this got to do with the Right to Privacy?”

Allow me to quote from the Supreme Court judgment on Right to Privacy:

“The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination.”

In simple terms, the Right to Privacy gives a person the right of self-determination. An individual, you, can do what you want (as long as it’s not illegal) and the government can’t stop you from doing it. Like in the bedroom example, when you have a fundamental right to privacy, you can dance around in whatever way you want, wearing whichever clothes you want, without worrying about someone watching you all the time.

Another aspect of this, which is more relevant to Aadhaar specifically, is the fact that UIDAI is collecting your data and sharing it with even private companies without your consent. All these leaks that have happened, where even information like bank accounts were shared online along with the Aadhaar details, are one big example of the violation of the Right to Privacy. Those people whose data was leaked wouldn’t have wanted it to happen. But it did.

Although Aadhaar is not directly responsible for these leaks, it is definitely enabling the use of the data that got leaked.

The Judgment

First things first, this judgment *does not* affect the validity of Aadhaar. Yet. That is a separate matter which will be heard by another bench of the Supreme Court. What this judgment did was to re-instate our right to privacy and declared that it is a fundamental right. Which means, the government cannot violate it using any law. But but but, there is a catch here. The judgment does not talk much about the “reasonable restrictions” that accompany every right.

For example, reasonable restrictions to the Right to Liberty, guaranteed by our Constitution, would enable the police to haul a person in jail if he/she commits a crime. Thus taking away his/her Right to Liberty. Similarly, Right to Privacy *also* has reasonable restrictions since it now falls under our basic right to personal liberty.

The reason to celebrate this judgment is the simple fact that this now a weapon in the hands of the citizen against a state that is trying to infringe their personal space. This is a legal tool which can be used to argue in court against the beef ban, criminalization of homosexuality and anything else that is a person’s private matter. The possibilities are truly endless, as the thick judgment shows. In the attempt to clarify what the Right to Privacy actually means, these 9 judges of the Supreme Court explored each and every aspect of how privacy is important for us citizens. And also a lot about the very nature of our Constitution!

For Example:

All in all, this was one historic judgment which is going to have far reaching effects on a lot of things. Aadhaar is just one part of it. For the effect of this judgment on the UID, we will have to wait for the Supreme Court to deliver another epic verdict. Let us hope for the best with some amount of cautious optimism.

Coz our judges be on a roll yo!

The author can be contacted on Twitter @Memeghnad.