Why Some Of The Celebrations Over SC Verdict On Privacy May Be Premature 

The rapturous response to the unanimous verdict of a nine-judge constitutional bench headed by CJI J S Khehar, which declared privacy as a fundamental right, is a bit unreal. So many expectations have now been given wing that we need to strike a note of caution. It is possible that the repeal of section 377 is now only a matter of formality, that freer abortions and euthanasia are also matters of an individual’s rights, and that religious conversions and the right to marry whom you want or eat what you want are logical extensions of this right. Don’t count on it. Between upholding a broad principle and making it applicable in a whole host of specific cases and issues there will always be a huge gap. Privacy is not a black and white binary; the grey areas are real, and cannot be wished away.

This is primarily because – to repeat a cliche – no right is absolute. Just as your freedom stops where mine begins, even the right to privacy will be challenged the minute it involves another person, society, or public interests at large. Whether it is what happens between the sheets between consenting adults, or between parent and child inside a home, or in divorce courts, every norm of privacy ends when it is challenged by someone else. In Norway, the state has the right to take your child away if it thinks you are not an ideal enough parent. Some have called this a case of the government abducting children, but what would be laughed out of court in India, is considered a progressive idea among the Nordics.

It is worth recalling that just a day before the privacy judgment, another Supreme Court bench nearly ruled in favour of retaining triple talaq in one sitting; it needed one judge (Kurian Joseph) to come down on the side of banning it by reading new meanings into the Quran. He was actually in favour of giving validity and importance to personal laws. This would have been the very antithesis of the fundamental right to privacy, which is about denying the state or society the right to violate an individual’s rights by privileging a larger group called “minorities”.

Fundamental rights are about protecting the minority of one, and the reason why we think the LGBT community will benefit from the privacy judgment is because it protects the rights of smaller minorities within larger majorities and minorities. The privacy verdict, authored by Justice D Y Chadrachud, says this eloquently: “That a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals and transgenders is not a sustainable basis to deny (them) the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities…”.

From thise formulation, it should follow that the state cannot search my apartment for what I eat, or that the Kerala High Court was wrong to restore the Hindu girl, who converted to Islam and married a Muslim, to her parents.

But this is where we get into grey areas. When 20 states ban beef, it does not follow that the state has no right to enforce the ban by questioning those who consume it about where they got their supplies from. This may bring the law into your home. While any woman has the right to marry anyone she chooses or convert to any religion she fancies, it does not follow that this choice was made fairly. If there is reasonable suspicion that she may be getting radicalised, or about to join Isis, both the parents and the state do have the responsibility to investigate. The law will have to decide whether the suspicion was “reasonable”, and not whether this was something that simply cannot be investigated. Or else, the Supreme Court would not have asked the National Investigation Agency to probe the case.

Or consider other extensions of the right to privacy, if it is assumed to be fundamental and flowing from article 21’s guarantee of the right to life and liberty.

One can construe it to mean that the use of loud-speakers for azaan constitute a violation of my right to live a peaceful life in my home; this applies equally to loud music played during Hindu festivals. Or the use of excessively loud fireworks. But singer Sonu Nigam, who brought up the issue of azaan, either drew criticism or a studied silence from the same “liberals” now singing praises of the Supreme Court judgment. The middle ground is the one suggested by a court, that azaan is a right, but not the use of loudspeakers for azaan. But this did not stop the Maharashtra government from claiming that there are no deemed silence zones anywhere. It’s not illogical to claim this, since mosques and Ganesha pandals are almost everywhere.

And two days after the triple talaq judgment, one of the women litigants is facing a “social boycott” and ostracism by conservative Muslims. Given that all humans are social animal, a covert social boycott is no different from the abhorrent practice of untouchability. If interpreted in the light of the privacy judgment, this is as much an assault on the litigants’ right to life and liberty. Equally, can she claim protection from individuals who choose to boycott her? How can an individual’s right to privacy and dignity be protected, if key members of a society turn against her? Can any court protect her from social boycott?

Or consider another example. On Facebook, birthday wishes are frequently pasted on the wall, and this information may be available to hundreds of people you are “friends” with. But your date of birth is not just about social good wishes; it is often a key to establishing your identity in online calls and other areas. If you share this date with hundreds of people, how will you ever ensure that this private data is not leaked? Where does your individual responsibility to protect your privacy stop and that of the state or law enforcement begin?

We even have cause to disbelieve the general assumption that section 377 is now a goner. The lead petitioner in the privacy case on Aadhaar, a former Karnataka High Court judge, Justice K S Puttaswamy, has specifically claimed that the privacy judgment is not about section 377. This may not be the right interpretation, but can anyone doubt that there is a fight ahead of LGBT rights advocates?

The point is simple: the right to privacy is not just about keeping the prying eyes of the state away from you and protecting your right to life and liberty. It is about the social circle you live in, the products you buy, the social media websites you frequent, and your own personal responsibility to not share it with people you know nothing about, unless it is mandated by law, and is separately protected by it.

We are celebrating the right to privacy a bit too soon. The battle has just begun, not ended.