Now that the Supreme Court has declared privacy to be a fundamental right, what exactly would that mean in real life?
Here is a guess on how Indian society may ‘translate’ the apex court’s verdict.
Several seminal events have taken place in over the last month. Following close on the heels of the seventieth anniversary of independence, the Supreme Court delivered two seminal judgements with far reaching consequences on privacy as a fundamental right, and the legality of triple talaq. Set up against a long historical and social tradition of de-privileging the individual and empowering communitarian practices and state power, it will be interesting to see how these judgements are given practical effect. With the affirmation of the individual, both judgements strike one more blow for the forces of modernity and the attendant social processes that it gives birth to. Both, if taken to their logical conclusions have the potential to introduce radical ruptures in the way social and political affairs are conducted.
Historically, the concept of privacy has not been an element of social life in India. Hindi and Urdu are the two Indian languages that I know – and the fact that in neither is there a word to precisely denote this concept is telling. Examples of the lack of privacy abound. Passenger information – including name, carriage, seat numbers and journey – is freely given out on railway reservation charts at stations. Universities and schools often post grades on notice boards. There are no general data protection laws and no provisions for the protection of personal data. In a 2006 survey and paper, Ponnurangam Kumaragaru and Lorrie Cranor of Carnegie Mellon University suggested that there was a general lack of awareness or concern about privacy in India – that Indians were happy to publicly share personal information with the government, with extended family and web-based services despite the lack of data protection laws.
Given such a disjuncture between received modes of behaviour and the importance of data in today’s information society, how ‘privacy’ will be constructed in India remains to be seen. The judgement, coming close on the heels of 70 years of independence, provides a perfect time to reflect on the past, or more precisely, why the past is important, what it means for the present and how it is connected to the future. I have often been asked why disputes about the past are such a defining feature of Indian politics. The unstated assumption behind this question, of course, is that Indians are somehow stupid for fighting over the past when they should be concentrating their energies on other serious matters. And the answer is that the past impinges on the present, and therefore the future in many ways. Unlike Nehru who wanted Indians to leave their past behind and embrace become ‘modern’, current politics has embraced the past as offering a vision of the future. And they are not entirely wrong.
Future is indeed created, but they not on a clean slate; they are created on the sediments of the past. The acts of creating that future, of putting such judgements into effect, of actualising abstract concepts such as privacy, are committed by social individuals. These social actors, as the political theorist Sudipta Kaviraj once said, have to undergo a process of willed transformation, whether coercive or elective. These individuals come from a variety of contexts. They have histories, traditions and memories, received ways of doing things and conducting themselves. When they learn new concepts and apply them in their social lives, previous skills and practices always seep through, they work inside and through the new ones to twist them into unfamiliar shapes.
The reading of the concept of privacy into Right to Life and Liberty by the Supreme Court, therefore, carries the potential for great social transformation, depending on how the concept is put into practice. Reading a concept like privacy into legal frameworks of the state is comparatively easy. Translating it into the normative frameworks or social and political processes of society is a whole different story. It has been the same with others – secularism, Westminster style democracy, equality of women.
Translations are notoriously hard to achieve. If an idea, or the vocabulary to express that idea, does not exist among the people in whose language something is to be translated, then simply translating a word is unlikely to be meaningful in itself. Words such as “privacy”, or “secularism”, or “democracy” are therefore not simply descriptive words; they are signifiers of meanings, layers attached to them through historical contexts. They are ideas which can only be meaningful to people when they make sense of it through their own historical experience or their own lived reality. None of this is to say that ideas cannot be translated into different contexts, or that they do not result in social transformation. I am a big supporter of restraining powers of the state – and the privacy judgement is a step forward to this transformation. And I support gender equality, greater protection for women, greater protection for individual rights and firmer enunciation of secular principles. But one must also recognise that when such translations happen, older accents are hard to get rid of.
Much like native languages colour the accents of whatever new language one learns, received patterns of social relations, received structures of social and political institutions continue to work their way through these translations.
Whatever else India may be, it is definitely not ‘secular’ in the ways that the word denotes, or as it is taken to mean in Europe, where the concept originated. Despite the legal translation of equality for women, it will be a rare person indeed who will venture to say that Indian society is not heavily gendered or biased against women. And as we applaud Indian democracy, we must also recognise that it is hardly democracy as it is practised in Westminster. In fact, 70 years since its formation, the Indian state itself still has a hard time forgetting its colonial origins and the attitudes it learnt during that period. What form of privacy this judgement will therefore deliver remains to be seen, but it is highly unlikely to be privacy as understood in the social and political life of the West.
In his pioneering work ‘Culture’s Consequences: International Differences in Work-Related Values’, the social psychologist Geert Hofstede argued that national culture has a large bearing on social attitudes. He identified five dimensions of culture – essentially basic problems, to which different national societies had over the course of history evolved different answers. In terms of the individualism vs collectivism dimension, Hofstede identified India as a strongly collectivist society. Other studies have not only validated Hofstede’s arguments but strongly associated historically developed cultural traits with differing ethical frameworks in life. The results of these studies demonstrate, for example, that India developed culturally determined conceptual and ethical frameworks very different from the West. Few studies do not a full argument make – but they are strong indicators of conceptual difference.
This is not to say that such concepts should not be introduced. It is just to say that they have a life of their own. Whatever will be created, it will not be what is intended. It will definitely not be what the word denotes, or the process it has come through in the west. Whatever form of social structures and relationships that modernity may deliver, they will not be the social structures that it has delivered in the west. And this is not something peculiar to India – these are issues that almost all non-western societies grapple with in one sense or another.
In other words, it is hard for nations and individuals to leave their pasts behind entirely. A Britain or the United States cannot be created in India. Indians cannot become Europeans. The vast majority will never speak English with a British accent if they speak English with any degree of fluency at all. Only a future consistent with India’s past, or some version of that past is possible. As the sociologist T N Madan wrote, new formulations can only ever be redefinitions of an already existing cultural phenomenon or relationships. Which is why interpreting the past, and disseminating that interpretation is such a political exercise. Because the fight over the past is also a fight to determine how people relate to the present, and by extension, the future. It is to determine how they mould concepts such as secularism and privacy to the social context of their lives. It is to determine whether historical antecedents can be found for current political projects, and social mechanisms to put those projects into practice.
The past, however, is rarely undifferentiated – contesting and contrasting visions of it are available. And visions of the past are also in a way, versions of the future because they guide the formulation of social structures and social relationships today. What were social relationships like in pre-colonial India? How did the introduction of modernity mould society – and how much did Indian society mould the forces of modernity? Such questions, therefore, aren’t just esoteric debates that politicians stir up simply to create trouble, but questions that the public considers worthwhile themselves. They consider it worthwhile because answers to those questions provide perspectives on their own experiences, and convey meaning to their own social structure.
Answers to these questions impinge on the ideational construction of social categories and social relations. They determine how one relates to abstract concepts such as privacy, or secularism, or democracy, and the mechanisms one puts in place to translate them into social and political life.
All shades of political opinion are forced to engage with some version of India’s past. There is a reason why liberal and ‘secular’ shades of political opinion look for mechanisms to actualise the idea of ‘secularism’ by looking at syncretic practices, pluralistic political mechanisms and hybrid identities of the Mughal period. There is a reason why secularism is always equated with political and religious pluralism, rather than the banishment of religion from public life. There is a reason why the Hindu right seeks to trace its ideological roots in the Maratha resistance to Mughal rule. And that is because it is largely through shared historical experience, or a version of such shared historical experience, that people make sense of concepts and ideas for which there are neither words nor mechanisms in the Indian experience. Actualising such concepts inevitably involved the redefinition of some version of pre-existing social mechanisms as Madan noted. But when we recover and redefine such mechanisms, they will always retain some of their previous fashions.
The major goal then isn’t, as Nehru thought, to simply to leave all versions of the past behind and seek salvation in ‘modernity’, and the hope that modernity will deliver a Britain in India, but to engage with the past, or some versions of the past, to understand the context through which these concepts are mediated. The ideological goal is to retrieve those versions of the past which are valuable, and use them to the frame of the normative frameworks of Indian society, and evolve the institutional mechanisms through which these concepts can be actualised.
In this, the role of non-ideological, but nevertheless critical and honest history writing and fair historical debate is critically important. It is through these that the self-fashioning of social actors takes place. And it is through this self-fashioning that these concepts are made sense of. A reasonable and nuanced appreciation of history, or particular versions of history, and its role in the self-fashioning of identity and the creation of social relationships and structures is necessary to understanding how modernity and related concepts such as privacy are translated into India. The way we fashion the past is therefore also the way we fashion the future.
We could start by recovering the historical experiences, words and mechanisms through which concepts such as privacy can be translated into social and political life in India. Perhaps we may even be able to find that our own historical experiences and traditions give us a better model of how to frame the idea of privacy, and by extension, modernity. It may not be the exact word or the phenomenon that has evolved elsewhere. But it may well be a lot easier to institute in the Indian context.