Occasionally in India our institutions work as they were designed to do. Sometimes they correct grievous injustices along the way. Now and then, they open up the scope for great improvements in our lives, and empower regular people. That is what nine judges of the Supreme Court did today, when they said unequivocally that the constitution protects the right to privacy as an intrinsic part of the right to life and liberty in Article 21.
Naturally, this does not per se strike down some of the assaults on privacy that the central and other governments have lately been conducting using Aadhaar. That requires further legal tests, in which the government can seek to show that its actions are "reasonable" restrictions on the right to privacy. As this judgment says, "it is only after acknowledging that the right to privacy is a fundamental right that we can consider how it affects the plenary powers of the state".
But certainly, those who worry about the ever-expanding role that Aadhaar is taking - although we were promised when it was first being planned and introduced that it would be voluntary - have been handed an important legal tool. And the state will have to structure its interventions better, and place some restrictions on the unrestrained use of Aadhaar. It will have to argue that demanding biometrics for, say, buying IPL passes, or for getting an airport terminal visitor pass, is a reasonable requirement. Good luck, I say, good luck.
The BJP, of course, has swiftly moved to do what it does best: trying to take credit for something it has nothing to do with, or perhaps solidly opposed. Government ministers were last seen hailing Narendra Modi for having apparently passed the triple
talaq judgment earlier this week. Now they are saying that the government always held the view that the right to privacy should be a fundamental right. (Just as Modi always held the view that the GST was good, that Aadhaar was important, that FDI was useful, and so on.) This is in spite of the fact that page 193 of the judgment records, in stark black and white, that the government argued in court that "there is no general or fundamental right to privacy under the constitution". Nevertheless, I have no doubt the BJP IT cells is moments away from trending #ModiGivesRightToPrivacy.
Why exactly is this judgment - which, remember, was unanimous with 9-0 - so momentous?
Well, first, note that it is clear on what sort of country we are. We are a country of individuals, not of groups. Individual rights and individual freedoms are what our constitution is founded on; this is India, and not China. Civil and political rights are an essential part of
"Vikas", and not distinct from them. As the judgment said: "Our Constitution places the individual at the forefront of its focus... The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights." This attitude is reflected throughout the various opinions in the judgment; it's why this is a step forward for the empowerment of regular people, and a much-needed reminder that India is a democracy built on the principles of individualism and liberalism. As Justice Chelameswar writes: "Man is not a creature of the State. Life and liberty are not granted by the Constitution. [The] Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty."
Second, this judgement sets a path forward, and opens up new vistas of freedom. Perhaps most immediately, it makes it clear that the legal challenge to Section 377 of the Indian Penal Code, which criminalises homosexuality, is still alive. The four-judge opinion authored by Justice Chandrachud said "Sexual orientation is an essential attribute of privacy"; Justice Kaul's opinion said "One's sexual orientation is undoubtedly a matter of privacy". Justice Chandrachud's particularly harsh take on the Supreme Court's dismissal in its Section 377 judgment of the "so-called rights" of LGBT people made for eminently satisfying reading. It also opens up challenges to anti-conversion laws and past judgments supporting them, for, as several opinions in this judgment state, belief is a matter of privacy. And the judgment pushes the government to ensure that a rigorous data protection scheme is introduced. These and other facets of the judgement mean that India today can be seen as being a freer country than it was yesterday - if, that is, Indians continue to fight to make the right to privacy real and to defend it from the government's actions.
And, finally, mistakes from the past can be corrected. Perhaps most wonderfully, the Supreme Court took this opportunity to revisit its darkest hour, the
ADM Jabalpur case in 1976 in which an Emergency-era bench determined that
habeas corpus - the right to judicial review of an arrest - could be suspended. Now, the Supreme Court has finally "expressly overruled" that judgment. Justice Kaul says, memorably, that the SC should "[bury] the majority opinion [in
ADM Jabalpur] ten fathom deep, with no chance of resurrection." It's worth noting that the author of the four-judge opinion in this case, Justice DY Chandrachud, is the son of one of the judges on the winning - but wrong - side of the
ADM Jabalpur case. In his words: "the judgments rendered by all the four judges constituting the majority in
ADM Jabalpur are seriously flawed", and he goes on to explain why. Ask yourself: how often does this happen in our public life, in a country stricken by an over-dependence on dynasties? How often do we have to live with the mistakes of the past, pay lip service to them, justify them, because the descendants of those who made those mistakes lack the courage to admit their ancestors' errors? Which Nehru-Gandhi has called out Indira Gandhi's Emergency in these terms? Look beyond individuals, for that matter: Which institution in India has shown itself willing to admit past errors and correct them?
As I said, occasionally, institutions work as they are supposed to. Today, the Supreme Court did us proud. It may let us down tomorrow, or other institutions might. But this judgment will stand the test of time in the way
ADM Jabalpur did not. And most importantly, it opens up a brighter future the way few decisions have.
(Mihir Swarup Sharma is a fellow at the Observer Research Foundation.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.