As a law teacher and lawyer working in my home system, but concerned with issues of law and technology that are global more than they are national, i’ve spent the last several years paying much more attention to the Indian Supreme Court. In cases involving decency regulation and intermediaries’ liabilities for user-generated content, the Supreme Court has begun to frame a voice on issues involving political and expressive freedom in the age of the networked society.
It will be considering these questions as will the highest constitutional courts of the United States, the European Union and its members, South Africa, or post-European Britain. A powerful court speaking for the world’s largest democracy on issues of privacy, expressive rights, surveillance, identity control and the other similar matters now coming to the fore in all societies will be immensely influential.
Illustration: Uday Deb
All of which leads me to regard with puzzlement the efforts the Supreme Court is apparently taking just now to avoid speaking at all on the most important of current questions, not just for India, but for humanity. The Supreme Court now has before it – pending already for a period of almost two years – petitions asking it to rule on whether Indian citizens have a constitutional right of privacy against government.
The pending case of Justice KS Puttaswamy & Ors vs Union of India & Ors was the first in the series of cases challenging the Aadhaar scheme. The case, along with 15 other matters tagged along with it, is currently pending before the apex court, after being referred to the Constitution Bench in 2015.
The Court has ruled, and occasionally reaffirms in commentary on related matters, that Aadhaar registration cannot be made generally mandatory, yet it has before it unaddressed numerous petitions concerning large numbers of social services for which Aadhaar registration has been made mandatory in apparent contempt of the Court’s ruling.
Taken together, these matters that the Supreme Court does not seem to want to hear ask the most important questions now pending anywhere among the societies that adhere to the rule of law, concerning citizens’ freedom in 21st century societies. If government does not have a positive responsibility to protect the privacy of its citizens, including against itself, then the technologies of behaviour collection now being grafted into the nervous system of humanity we call the internet will make new, hyper-efficient modes of despotism inevitable.
If citizens don’t have the right to inspect and understand biometric identification databases that contain all our identities and all the behaviour that is attributed to us, what we now think of as “free society” can be turned off at any time. The Indian Supreme Court’s docket now includes clear and pressing questions that lead to the heart of issues all the world’s democracies are going to face very soon.
But two successive Chief Justices have now found it impossible to constitute a seven-member bench to hear the privacy right petitions. No action is being taken on the Aadhaar contempt petitions as the Government moves on. The inertia is mysterious and surprising. The world is listening; the voice of India’s constitutional lawyers reasoning for their powerful and immense society will speak directly to the judges of the rest of the world’s democracies.
In the US Supreme Court, where i had the privilege to work for Justice Thurgood Marshall as a young law clerk, there is a valuable assumption that everything on the docket at the start of each term will be resolved by its end. Perhaps once in a decade, the Court will order a reargument of some matter, putting it over for a second yearly term.
The US Supreme Court, it is true, controls its docket and selects its cases differently than the Indian Supreme Court, and the presumption of an ability to dispose of everything within one year cannot be recommended here. But all our courts descend from those made in the England of King John’s Magna Carta of the year 1215, in which it was first promised to observe the truth that justice delayed is justice denied.
For all of us throughout the human race who live under the rule of law, how the Indian Supreme Court decides the cases now pending before it will have important consequences. All the other developed democracies recognise some form of the constitutional right of privacy against government. If the Indian Supreme Court shows that the world’s largest democracy believes it can survive without that commitment, it will weaken the cause of privacy throughout the few parts of the world that uphold it.
If, on the other hand, the Supreme Court places India in the vanguard of the constitutional democracies, then the evolution of Aadhaar, UPI, and other aspects of Digital India will occur in a legal and constitutional context that will become a light unto nations, an example to the world’s advanced societies. What is the Supreme Court waiting for?
DISCLAIMER : Views expressed above are the author's own.
