When in August last year the Supreme Court ruled that - contrary to what the government had held in court - Indians do indeed have a fundamental right to privacy, protected by the Constitution, a new dawn seemed to have arrived. For years now, activists had been sparring with UIDAI (Unique Identification Authority of India) officials and others in the government about whether or not India’s Aadhaar database posed a threat to the privacy and security of the state as well as its citizens. Much of the government’s approach to those debates seemed to hinge on treating privacy as a secondary concern: one subservient to other needs, such as those of development. The Supreme Court effectively demolished this view in the Puttaswamy case, as it reconfirmed the inherent importance of privacy for the constitutional values of liberty and dignity, as well as for development.
Six months later, the concrete impact of the judgment is still awaited, as reports of Aadhaar data breaches and unauthorised use of Aadhaar numbers, such as for fraudulent withdrawals from bank accounts, continue. Only later this month will the Supreme Court again take up the numerous challenges to the Aadhaar programme that have been pending before it, in what will presumably be the final hearings. But how much relief these will bring remains unclear, and a positive outcome is by no means a given.
For one thing, in other cases that touch on issues of privacy, the Supreme Court has been surprisingly disregarding of the main thrust of the Puttaswamy judgment. In particular, the judgment highlights autonomy and decision-making as integral to the right to privacy, enabling ‘individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity’. Laudable words, yet they seemed to have been all but forgotten in, for example, the case of Hadiya, formerly named Akhila, who converted from Hinduism to Islam and married a Muslim man-out of her own choice, as she has consistently maintained.
When Hadiya’s father filed a complaint alleging that her conversion and marriage had taken place under force from the Islamic State, the Kerala High Court ended up declaring the marriage null and void ‘on the grounds that bride’s parents were “not present or given consent” for the marriage’. The Supreme Court has not reversed the annulment of the marriage so far. Instead, it ordered, in August 2017, a probe by the National Investigation Agency to investigate whether the marriage was a result of a larger scheme of ‘love jihad’. It reportedly will take further action only once the results of that investigation are known.
The Puttaswamy judgment recognised that reasonable restrictions would have to apply to the right to privacy. But as Hadiya’s case-and its disregard for an adult woman’s right to ‘preserve her preferences and choices against society’s expectations’ in intimate matters-illustrates, when the Supreme Court assembles for the final hearings in the Aadhaar case later this month, it remains to be seen to what extent it will privilege autonomy and decision-making of citizens over the State’s needs and interests in practice.
Moreover, when ruling on Hadiya’s personal life, the Kerala High Court exercised ‘parens patriae jurisdiction’, which refers to the power of the State to provide protection to those who are unable to care for themselves. Generally, this is drawn on in cases involving minors or people with severe mental disabilities. By taking up this mantle to make decisions for a perfectly healthy 24-year-old-decisions, moreover, that go directly against that very 24-year-old’s will-the court effectively set itself up as the ultimate patriarch.
This provides further food for thought as to how critical the Supreme Court will be ready to be of the government’s own attempt to take up the position of the benevolent patriarch in the context of the Aadhaar programme. In the way it is set up now, the Aadhaar scheme effectively requires citizens to give up autonomy and control over their data to put their complete faith in the State and its decision-making.
The government’s approach was perhaps best exemplified by the then Attorney General Mukul Rohatgi’s claim, in a hearing of the Aadhaar case in the Supreme Court last May, that the Indians’ right to their body is not absolute. What was remarkable was not so much Rohatgi’s claim as such. After all, women, as well as many other non-dominant groups, are continuously confronted with restrictions on their bodies that are not necessarily of their own choice-from whether or not they wear certain clothing to whether or not they bear a pregnancy to full term (and whether to bear that child for someone else or not).
Moreover, the concern with women’s bodies has also ensured that the privacy accorded to women, too, is frequently restrictive: even if privacy as bodily integrity gets recognition, where women are concerned this is often driven by notions of morality and concerns about family reputation, leading to understandings of privacy that privilege ideals of covering up, of withdrawing into the private sphere. In fact, such readings are so common that even the examples from ancient Indian religious texts that Justice Sharad Arvind Bobde cited in his opinion in the Puttaswamy case take this form. Thus, in practice, both privacy and bodily integrity have never been fully available to all Indians.
What was remarkable about Rohatgi’s claims, then, is that the State, in its defences of the Aadhaar scheme, sought to proactively endorse and further generalise this precarious state, hitherto particularly poignant for its more vulnerable citizens, rather than enhancing citizens’ autonomy, control as well as bodily integrity. The government, too, wants to take up the mantle of the patriarch, including in the digital age.
To be fair, it is not only the Indian government that is trying to get citizens to accept a state in which they put their faith in the hands of centralised authorities. Large swathes of Internet-enabled industry, whether they are established global giants or Indian stars or start-ups, too, would like us to hand over our autonomy and decision-making and control as much as possible to them. It is true that the consequences of private businesses doing so are not quite the same-after all, Facebook or Flipkart do not have the same power over your life as your government does. But the underlying paradigm driving their actions is very similar-and, as the discussions around disinformation and online manipulation exemplify, for the world’s democratic countries, increasingly is a threat.
In addition, and importantly, the extent and shape of this threat, and of the protections needed to ensure that it can be contained, is frequently not yet fully understood. Thus, when it comes to the digital sphere, the Puttaswamy judgment has an important shortcoming in that it continues to see privacy protections relating to cyberspace as being a matter mostly of ‘information privacy’ and of ‘data protection’ as conventionally understood. But that may no longer be sufficient, as the line we draw between our body and information about our body has slowly started to disappear.
Take, for example, the reports of starvation deaths following the denial of rations to people because of Aadhaar fingerprint authentication failures. In these instances, the failure to match fingerprints-the physical body-to the set in the Aadhaar database-the data body-literally has had life-and-death consequences. Merely focusing, in the context of Aadhaar, on data protection as conventionally understood will not do anything to prevent such severe harms for bodily integrity from occurring again in the future.
This, then, is why the outcome of the Aadhaar case is so important. When the Supreme Court assembles for the final hearings in that case later this month, it will not merely be determining what can be considered some of the reasonable restrictions on the right to privacy, and what are their limits: it will effectively be determining what shape our world and future in the digital age will take. Will it be a world in which citizens’ autonomy, decision-making capacity and bodily integrity are further fostered or will we be saddled with architectures and ecosystems that fundamentally and continuously undermine these? 2018 will bring an important part of the answer.