Right move
Supreme Court takes a step towards reading privacy as a fundamental right. The timing is just right.
The Englishman has known that his home is his castle since 1628, when Sir Edward Coke wrote it into the Institutes of the Lawes of England, the bible of common law. And he codified a belief that had been in currency for at least a century earlier. Coke’s dictum has been sadly misused by the right in several countries to argue for the right to be badly behaved at home. But, on the other hand, it also established the notion of private space as the refuge of free will, the fundamental building block of democracy. It is therefore surprising that until now, the jury has been out on the question of privacy in India, which has successfully adapted numerous English institutions to an Asian context.
In response to Attorney General Mukul Rohatgi’s argument that two judgments by constitution benches in 1954 and 1963 had held that privacy is not a fundamental right, and that there can be no clarity on the question unless it is referred to a nine-judge bench, the Supreme Court has held that without the fundamental right to privacy, the right to life and liberty guaranteed under Article 21 of the Constitution would be meaningless. This is not the last word on the issue since the matter, in which various parties have argued that the collection of Aadhaar data is a violation of privacy, is still being heard. But the court has clearly indicated its willingness to sanctify privacy. Following his observation on Englishmen and their castles — Englishwomen did not typically own property or enjoy much free will at the time — Coke had elaborated, “…et domus sua cuique est tutissimum refugium (and each man’s home is his safest refuge)”. Hopefully, the court will enlarge on the theme.
The idea of private space is no longer defined spatially. It is the dimensionless mindspace in which we think, express and interact. The contemporary “castle” that deserves legal protection is the human community, the media and the ether in which its communications intermesh, where it interacts with institutions and performs all the functions that bring richness to life, from rocket science to slapstick comedy. While individual privacy remains the bedrock of democracy — its basis is a secret ballot — the privacy of the collective and of relationships has assumed equal importance. While public concerns about the collection of private data by Aadhaar for authenticating identity may be exaggerated, the possibility of multiplexing data to profile people and groups is real and could amount to an invasion of privacy. Since deterrents to this possibility will be legal rather than technical, the courts will play a crucial role in resolving this issue. The Supreme Court has moved purposefully in the right direction.
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