When your body is only partly yours

Garga Chatterjee explains what protects a citizen's right to privacy-at a time when the Modi government is committed to mass surveillance

When your body is only partly yours
On the 24th of August 2017, the Supreme Court of India ruled that privacy was a citizen’s fundamental right. The hearing was triggered by the BJP-led Union government’s mass biometric registration for citizens as part of the Aadhaar programme. Through a unanimous 9-0 ruling of its full bench, the Supreme Court basically trashed the Union government’s argument that privacy was not a fundamental right for a citizen. The government’s lawyer said before the court that a citizen could be forced to give the government his or her iris scan and fingerprint, claiming that, “the concept of absolute right over one’s body was a myth”.

Let’s pause for a moment and think about what that means. Is it outrageous or is it acceptable? The answer will vary wildly because the citizens of the Indian Union belong to various linguistic states whose political culture, consciousness and, hence opinions are different. It is not accidental that the BJP-led Union government took the view that as an individual you do not have absolute right over your body. It made this claim confidently because most of its MPs were elected from states where such an opinion would not be met with a backlash. The problem is that 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 a 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 on the issue of privacy was ignored.

Thus 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 own autonomous powers, representing an autonomous set of political aspirations and political wills do indeed 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 team in the Supreme Court and have argued that they consider privacy to be a fundamental right of a citizen. This is because they believe that 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 such as that of Kerala, Punjab, Karnataka and others underlined their dissent with the Union government’s opinion on privacy. The Supreme Court heard all of this and then delivered the judgement. 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 judgement. The people of West Bengal, Karnataka and Kerala should be concerned about how the 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 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 a 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 that political forces such as Congress 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 information-grabbing schemes aimed at citizens, voluntary or compulsory, are tools of mass surveillance today: at a level of sophistication and breadth that would make the much demonised East German Stasi look like amateurs. However, one must note 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 viewpoint.
All such information-grabbing schemes aimed at citizens, voluntary or compulsory, are tools of mass surveillance today: at a level of sophistication and breadth that would make the Stasi look like amateurs

And so it was that the position taken by many 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 to be 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, on the other hand, said to the Supreme Court that privacy is not a fundamental right and that even individual body parts of a human being or a citizen are not completely owned by the individual – so they are not fully 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.

In light of the Supreme Court’s verdict protecting individuals’ right to privacy, 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.

When the previous Union government hatched the plan of a ‘National counterterrorism centre’, for instance, with overarching powers that sought to undermine the independent rights of the states to maintain law and order, it was precisely individual states – including Gujarat ruled by Narendra Modi – which stood up to Delhi.

Experience suggests that while it is true that a State government can be corrupt and authoritarian, it pales in comparison with the all-encompassing authoritarianism that the Union government has tried to impose time and again on the people. No State government ever declared a state of emergency. No State government has led sick and hungry citizens to preparations for a war. No State government has said that citizens do not have an absolute right over their own body parts! It is the Union government which has taken such positions and sought to implement them.

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 over 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, when it comes to the vital issues of security and various other points under whose pretext individual citizens can be denied their fundamental rights, 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.

It may be argued, then, that in the effort to protect civil liberties and fundamental rights of the citizens, such as privacy, this situation of a power imbalance has to end. The exclusive domain of the Union government has to be pushed back or made contingent on the concurrence of the State governments – such that crucial decisions should only be implemented in a given state when its own state government agrees. It would appear that there is no other way to ensure that the sovereignty of the citizens is upheld and considered non-negotiable.

Garga Chatterjee is a Kolkata-based commentator on South Asian politics and culture. He received his PhD from Harvard and is a member of faculty at the Indian Statistical Institute, Kolkata. He blogs at hajarduari.wordpress.com