—Menaka Guruswamy, B.R Ambedkar Research Scholar and Lecturer in Law, Columbia Law School and Advocate, Supreme Court of India
Child rights activist and Ramon Magsaysay awardee Shanta Sinha has spent much of her life fighting the good fight. When she realised that many of the poorest of the poor in India could not access social welfare benefits like ‘mid-day meals’ without an Aadhar or Unique Identification Number (UID), she decided to challenge the constitutionality of such a governmental measure. In Shanta Sinha v Union of India, filed in 2017, Sinha said that such a mandatory requirement violates the right to life and privacy of Indians. Presently, you need an Aadhar number to get a bank account, admission to a hospital, and to get a subsidised gas cylinder or social welfare payments.
The Hindi terminology Aadhar means ‘foundation’ or ‘basis’ and best reflects the problems with the government’s position – the lack of Aadhar will take away ones foundation or basis of citizenship from many amongst the 1.3 billion Indians. Aadhar uses biometric information, iris scans and other demographic information distilled from citizens. To give some comparative context: the US social security number does not require iris scans or biometric information and is available to citizens and non-citizens who work legally in the country. Unsurprisingly, India does not have a privacy or data protection law. If someone steals your Aadhar information or it is leaked (a common occurrence), then your remedy would be simply to simmer and sip some tea. Or you could tweet your dismay. While the petitioner’s lawyer had compared the compulsory nature of a UID tag to turning the country into a concentration camp, the Attorney General was categorical that there was no right to privacy in India.
The Indian Supreme Court has a complicated relationship with privacy – the pre- Emergency Court,[1] sitting in five and seven judge benches, found that Indians didn’t have such a right to privacy. However, in its post-Emergency incarnation – smaller benches (of two and three judges) – have found that there was such a right – evolving the law on a somewhat whimsical ‘case by case’ basis. Therefore, to sort out the jurisprudential chaos, the overburdened Supreme Court decided to upend its schedule and spare a mammoth nine of 29 judges to hear a single question – is there a right to privacy in India?
However, the case that is being heard now is not really about an identity number, but rather is really about the conception of Indian citizenship – or the Aadhar/foundation of being Indian. Why do I say this? After all, what is so special about this case that implicates Article 21 (which provides that “no person shall be deprived of his life or personal liberty except by procedure established by law”) from which flows the right to privacy?
Classically, the right to life is used to protect civil and political rights, fair trial, or simply the right to stay alive. However, India’s apex court has utilised it differently. The Court that is known to be a constitutional trail blazer in socio-economic rights, uses the right to life and liberty to render justiciable traditional socio-economic rights like the rights to food, water, education, health and even good governance
Yet, this same Court, has been reticent when confronted with cases that implicate human autonomy – in the context of speech, expression, sexuality, assembly and association. This isn’t necessarily contradictory – for when traditional civil and political rights are infused with the jurisprudence of necessary, but group based and popular socio economic rights, it does change the character of the right and moves it away from its more classical notion. It adds a certain flexible/malleable character to civil and political rights – whose primary core is located in the inalienable rights of the individual citizen. The Court has not consistently enough reaffirmed the more classical core of the right – that of the right to life as including the right to personal liberty – and located that right in constitutional principle.
Activists have conflated the battle for privacy with the battle against Aadhar. They are deeply concerned that the government – which has distinguished its tenure by its obsession with vegetarianism, criminalization of beef, and disinterest in prosecuting those who have been lynching Muslim citizens – would misuse Aadhar. The government’s stand in court arguing a lack of constitutional protection of privacy mirrors their politics outside the courtroom, where they have policed food preferences, intimate lives, gender roles and religious belief. Essentially, the current government has shown a lack of regard for the autonomy or integrity of the individual citizen in the country.
But, constitutionally this case is about more than Aadhar. The jurisprudence crafted by the court sees all rights emanating from an amalgamation of articles 14 (equality), 19 (speech, expression, assembly, association), and 21 (right to life and liberty) – especially as it pertains to the individual citizen against unconstitutional state action. And a lack of privacy would implicate the footprints of citizens both in their professional and personal lives, given the interconnected nature of these rights and the jurisprudence they rely on.
As the state increases surveillance through legal and illegal means with technological advances, without the right to privacy the ability to dissent or critique the state also withers away. But, what is enveloping the country is the melting away of a sense of autonomy – and an identity of the country is emerging that is not shaped by citizens but by a government and its unelected ideologues. The problem with the ‘case by case’ method of constitutional reasoning preferred by the court is the lack of constitutional principal that would enable interpretation of the constitution’s conception of the ‘citizen’ (and even non-citizens when necessary) as inherent rights bearers, swathed with dignity, bodily integrity and ability to make choices.
What both the Hindu caste system and British colonisation had in common is the exploitative premise of both and an inherent belief that their subjects – ‘lower castes’ or ‘natives’ respectively – were stripped of their ability to make choices that affirmed bodily integrity and dignity. However, the Constitution of India was premised on undoing both and reimagined Indian citizens as being choice bearers with rights to equality, dignity, expression, life and liberty. While the government’s error in court is to argue that privacy does not exist constitutionally, and not simply that it must be regulated, it is also constitutionally inappropriate to conflate the battle against Aadhar with the battle for privacy. Admittedly, the lack of appropriate data protection and private information laws, as well as a Human DNA Profiling bill (that will store the DNA recovered from murder, assault and other crime scenes) based on faulty science, makes the constitutional quest for privacy certainly dire. But, at stake is something even larger – either India will be its Constitution’s country, or it will be a society of subjects.
Suggested citation: Menaka Guruswamy, Giving Life Back to Liberty in India: Unique Identification and Beyond, Int’l J. Const. L. Blog, Jul. 26, 2017, at: http://www.iconnectblog.com/2017/07/giving-life-back-to-liberty-in-india-unique-identification-and-beyond-i-connect-column/
[1] The Emergency refers to 1975-1977, the only time in India’s history that constitutional democracy was suspended.
Comments
3 responses to “Giving Life Back to Liberty in India: Unique Identification and Beyond (I-CONnect Column)”
Menaka Guruswamy’s interesting blog raised a question for novices re India about the real choices the Court will be making. In Canada, Israel, and South Africa, to recognize a “right” means to give to judges the authority to demand that the government justify its position to judges. Rather than a “right” turning on an original constitutional agreement, or some principal of moral philosophy, the question for constitutional politics is whether judges are suited for this task. (We in the USA find that judges are NOT suited to require governments to justify economic regulation that protect workers, for example). Is this an issue in India as well? (ps — also helpful if authors would leave an email address).
[…] GURUSWAMY reports on a case before the Indian Supreme Court which could establish a right to privacy in […]
Dear Stephen, Thank you for your response. The Indian Supreme Court’s conception of its appropriate constitutional role is rather different from that of the United States Supreme Court. India’s apex court feels adept at wading into questions of social welfare, socio economy rights, labour laws, rights to food, water, health etc. The Court ‘almost’ legislates, and its decisions a few decades after independence from the British, explains this as necessary for a post colonial court and post colonial adjudication. The Court has also crafted through its jurisprudence its own appointment process. Having said all of this- it is also clear that the Supreme Court has played an extraordinary role, post emergency, in the endurance of constitutional democracy in India. I will send you an email, as well.