On August 24, the Supreme Court of India ruled that privacy was a fundamental right of a citizen. The hearing was triggered by the Union government’s mass biometric registration programme of citizens as part of the Aadhaar programme. Through the unanimous 9-0 ruling of its full bench, the Supreme Court basically trashed the BJP led Union government’s argument before the court that privacy was not a fundamental right of a citizen. The BJP led Union government’s lawyer said before the court that a citizen could be forced to give his/her iris scan and fingerprint to the government, claiming that, “the concept of absolute right over one’s body was a myth.”
Pause for a moment and think what that means. Is it outrageous? Is it fine? Well, the answer will be different because the citizens of the Indian Union belongs to various linguistic states whose political culture and consciousness and hence opinion are different. It is not accidental that the BJP led Union government said that an individual, you, do not have absolute right over your body, your own hand, your own legs, liver, blood, breasts, shoulders, head, hair, eyes. It made this claim confidently because most of its MPs were elected from states where such an opinion would not create a backlash. The problem is, the non BJP states, which are largely the non Hindi states, did not sign up to be represented by people holding such ideas. The social and political consciousness of states with and without Khap panchayats, with or without cow based lynching with impunity, with or without habitual female foeticide, with or without vegetarian terrorism, with or without large number of women dominating the streets every day cannot be the same and are not the same. Sadly but predictably, in the Delhi centric “national media” narrative, this heterogeneity was ignored.
The political angle
The case and its verdict became a direct issue between the Supreme Court of India and the BJP led Union government. But the Union government is not the only government that exists. State governments with their autonomous powers and representing an autonomous set of political aspirations and political will exist.
Thus, the Delhi narrative is blind to the fact that numerous State governments have opposed the Union government stance. They have put up their separate legal teams in the Supreme Court and have argued that they consider privacy as a fundamental right of a citizen. This is because the social and political consciousness of Haryana or UP and its opinion on individual liberties ought not to be imposed on the people of West Bengal. It is precisely this difference that the West Bengal government and other governments like Kerala, Punjab, Karnataka and others underlined their dissent with the Union government’s opinion of privacy. The Supreme Court heard all of this and then delivered the judgment.
The judges have come to be hailed as heroes by the metropolitan Anglo-chatterati, as if this were a vindication of their class, with the judges being an extension of their class. This very smoothly hides which parties and states voiced huge concerns about Aadhaar and privacy issues related to it, inside the Union parliament and outside for that is the real site of politics, not the Anglo-Hindi social media sphere. Those in BJP ruled Hindi states who believed that privacy ought to be a fundamental right should be thankful to the government and the people of West Bengal, Karnataka and Kerala for the Supreme Court judgment. The people of West Bengal, Karnataka and Kerala should be very concerned about how cow belt majoritarian ideology and vested interests can affect them in their own homeland and the Supreme Court will not side with them every time, as was clear in the case of NEET.
In the aftermath of the privacy as fundamental right ruling of the Supreme Court, the ‘national’ media has focused on two sides, one, the Supreme Court and two, the Union government led by Narendra Modi. One should not forget at this time that the idea of taking very personal information including biometric information of common citizen was a Congress idea. So when today the Congress tries to appear holier than thou and tries to score points over the BJP, one should also remember the political forces like the Congress which led the citizens of the Indian Union down this slippery slope.
Once that process was initiated, the BJP, which is a non-believer in the absoluteness of individual rights, took such a process to its natural next level. Let us make no mistake. The UIDAI, the Aadhaar and all such citizen’s information grabbing schemes, voluntary or compulsory, are tools of mass surveillance today at a level of sophistication and breadth that would make the much demonized East German intelligence agency Stasi look like amateurs. However, one must not forget that there are other parties involved in this situation beyond the Supreme Court and the Union government.
The Indian Union is, after all, a union of States and the individual State governments of States formed on a linguistic basis represent a particular stream of autonomous consciousness and hence a particular collective view point. This emanates from the political and social standard and historical trajectory of the ethno-linguistic nationality that constitutes that state. Thus, the strong deposition from numerous non Hindi states also signaled to a Supreme Court that has previously given verdicts to satisfy “public conscience” that there was no consensus among the citizens of the Indian Union even though the Union government would want to make it appear so.
West Bengal, the homeland of the Bengali people in the Indian Union, said in its representation to the Supreme Court of India that it considers privacy as a fundamental right. Hence, the people of West Bengal chose not to be represented by the Union government on this issue. This was true for Karnataka, Kerala, Punjab and others too.
The Union government said to the Supreme Court that privacy is not a fundamental right and moreover, even individual body parts of a human being or a citizen are not completely owned by the individual and is not fully and rightfully protected from encroachment by external agents like the government. There is no way to distinguish that view from the likes of those who run Guantanamo Bay or the North Korean regime.
The viewpoint of the government of West Bengal, which represents the collective democratic will of the people of West Bengal, stands starkly different to this totalitarian police state view of society. West Bengal is not alone. Karnataka, the Kannadiga homeland, also maintained that privacy was indeed a fundamental right. So did Punjab, the homeland of the Punjabi people, which has seen flagrant violation of human rights by government agencies for decades. Thus, among States, there was no unanimity.
Covenant of freedom
One must get rid of the idea that Delhi is the exclusive repository of all noble ideas and intentions with States being pesky irritants and obstacles in the implementation of such good things. This has been proved on the privacy issue as it has been proved most of the times before on various issues. By now it should be clear that Union government brainchild NEET is a devastating blow on inclusive medical education, on mother tongue medium students of non Hindi states, public healthcare and the federal structure of the Indian Union.
Similarly, when the previous Union government hatched the plan of a ‘National counterterrorism centre’ (NCTC), with overarching powers that sought to undermine the independent law and order maintenance rights of the states, it was individual states, including Narendra Modi ruled Gujarat, which stood up to Delhi. Yes, States can be corrupt and they are but that is nothing compared to the corruption of New Delhi and the Union government. Yes, a State government can be sleazy, but nothing compares to the sleaze of New Delhi and its Union government. Yes, State governments can be authoritarian and they are but nothing compared to the all-encompassing authoritarianism that the Union government has tried to impose time and again on the people. No Sate government ever declared a state of emergency. No State government has led sick and hungry citizens to war preparation. No State government has said that citizens do not have an absolute right over their own body parts. The Union government had.
The Indian Union exists because the States exist. The homelands of Bengalis, Tamils, Kannadigas, Marathis, Malayalis, Telugus and others predate the Union. The constitution represents the covenant of freedom and cooperation between the States. To make the Union government a tool of domination of the States is a grave breach of that covenant. Without the States, the Indian Union becomes a paper construct. The constitution ought to reflect that reality. Unfortunately at present, all such important issues like security and various other points under whose excuse the right of individual citizens can be hijacked, the Union government has near exclusive powers. This is a result of the over centralised structure of the Indian Union where most major powers reside with the Union government. This situation has to end. The exclusive domain of the Union government has to be pushed back or made contingent on concurrence of the State government such that fundamental and wide ranging decisions should only be implemented in a given state when the given State government agrees. Because, only the people are sovereign. And that is non-negotiable.