The Third Constitution by Indira Jaising

The Third Constitution by Indira Jaising

By Indira Jaising

 

The significance of the judgment lies not just in its protection of the right to privacy but in its insistence that no government, majoritarian or otherwise can violate the rule of law. Life is not a gift of the state but is a natural right, because it is.

The Constituent Assembly framed the Constitution as we found it when this country attained independence in 1947. Time and political developments led to the framing of the Second Constitution in Kesavananda Bharti, which held that there were certain basic features of the Constitution which could not be amended by Parliament. This judgment was intended to put the breaks on a majoritarian government from playing fast and loose with our fundamental rights. Times changed again and we moved on to the digital age, of information technology which was not within the contemplation of the Constitution makers, an age which brought with it unlimited means of communication,  access of information, self publishing without any state intervention or censorship, but also trolling, fake news, data mining and the ability to compromise our privacy.

Coupled with the fact that we are faced with yet another majoritarian government, the time was right for a Third Constitution, and that comes with the Privacy judgment which recognizes the fundamental right to privacy dignity,  and autonomy.

What is more important is that the Third Constitution has emerged when the political forces inimical to liberal and secular values are in power.

Justice Chelameshwar describes this process of Constitution making as the recovery of the “dark matter” form the universe or “invisible matter” from the Constitution which is the universe we inhabit as social and political humans. The right to privacy, dignity and autonomy,  are the hall marks of this Constitutional Universe. It is a universe in which no person especially the government can take away our right to make choices on what kind of   life style we wish to maintain and the decision we make in the pursuit of happiness.

The judgement must be seen as the outcome of our times, by nine wise men (alas, once again I have to say that there was no woman on the bench, but Justice Dhananajay Chandrachud  makes up for it by using for the first time in a judgment of the Supreme Court, “she” when referring to the subject and not “he”)

While a few days ago on the issue of Triple Talaq, it looked as if the Chief Justice of India was leaving behind a divided court and seemed like a polarizing figure, today, in contrast we see his statesmanship in leaving the court united in defense of the right to privacy. Of the nine Judges, three were common to both Benches.  One of them Justice Rohinton Nariman we can see seamlessly moving from Triple Talaq to privacy, dignity and autonomy on a Constitutional axis. In both cases the Constitution was his guiding light. One cannot say the same for Justice Kehar who in Triple Talaq sacrificed individual autonomy to rights claimed by the community of the right to freedom of religion. Future historians of the court would have to analyze why the Triple Talaq issue left the court so polarized while Privacy united the court. I have my own guesses.

It seems that religion is the last frontier that the Courts and women too will have to cross in our pursuit of gender justice. Noting divides the court more than issues of religion and religion impacts women disproportionately in family laws. Judges generally seem unable to transcend religious prejudices.

This judgment meets the challenges of our age, “the era of ubiquitous datavelliance” in that it speaks directly to the constitutionality of the compulsion of law causing us to part with information of a personal nature. The heroes of the modern age are people like Edward Snowden who alerted us to the dangers of the collection of meta data by governments under  color of authority of law and in the name of national security. These modern heroes must surely have been on the mind of such well-read judges when they wrote the judgment in the Privacy case. No law for the collection of data and personal identity markers will be considered valid without a data protection act. But the strongest data protection laws will have no meaning in the absence of a data security regime. In the case of Aadhaar,  there is none in place as is evident from the fact that that there have been so many thefts form the agents in whose hands data is collected and stored. The real issue is the aggregation of data by those who collect it for unauthorized purposes.

 All digital access leaves a digital trace and when this information is aggregated and when the silos collapse, they disclose the nature of the personality, food habits, language, health, hobbies, sexual preferences, friendships, and political affiliations, of the person concerned. The right to informational privacy comes in here to protect us form the use of this data without our consent.

More than half the population of the country now has Aadhaar cards. The Government has more than 139 schemes (as recently submitted before the Supreme Court in the interim relief for Aadhaar on 14th December, 2017) which mandatorily require Aadhaar to operationalize and access services.

There is an automatic aggregation happening here since these operation are linked to a single number, the Aadhaar number. The Government of India is the largest aggregator in the world today. One number to access several schemes, destroys the silos between schemes, and meta data collection becomes automatic.

It is here that the right to privacy will enable the citizen to resist the collection and use of meta data by the government. The validity of the Aadhaar Act will now be tested on these lines.

The world has seen the effects of data mining on subversion of democracy and free and fair elections in the USA . It has also seen cyber attacks on financial markets and national power systems. There is no guarantee, given our weak cyber security regime, that the Aadhaar data would not be used by unscrupulous persons for political or financial gain. As we head to a general election in 2019, these questions will haunt us, will we see a free and fair general election?

The recent judgment of the Supreme Court of Kenya setting aside the election of the President is a case in point. The Kenyan Supreme Court ordered a re-election within 60 days accepting the allegations of the petitioners that the elections held on August 8, 2017 involved electoral fraud by manipulating votes and the security of the technology as well as the transmission of the votes did not follow the protocol as mentioned in their laws. The majority judgment of the Supreme Court agreed that as the Independent Electoral and Boundaries Commission of Kenya was unwilling to grant access to the petitioners to check the logs as well as other features of their machinery to check for possibilities of tamper and hacking, they were unable to rely on their defense, and hence, a re-election would be required. This historic judgment, one of kind hold lesson for India as well on how technology can be manipulated for political gain.

Current controversies in the USA on the misuse of Big data to influence the outcome of the 2016 elections must be watched carefully to ensure that Aadhaar does not become an instrument to target voter behaviour. This has become more pertinent with Facebook, the social media giant’s CEO, Mark Zuckerberg acknowledging that he had underestimated the power of his company in being an electoral influence. It comes at a time when the Presidential elections of the United States in 2016 were massively criticized for having a Russian influence and being swayed by targeting tailored content to potential voters on social media platforms by analysing their personal preferences, opinions, and “likes”.

The  judgment of the 9 judge bench is remarkable also as it comes at a time when a majoritarian government uses its numerical strength to justify policies that are clearly unconstitutional. Since the right to privacy is located in the right to life and the other freedoms in part III of the Constitution it became necessary for the Court to establish the Constitutional status of the right to life. It was in ADM Jabulpur that the court took the view that the right to life was to be found in the Constitution and not outside it and hence it could be suspended by a Presidential order. This is what legitimized the Emergency in the eyes of the Constitutional Court and the country. It is this road block that the Court needed to overcome if the right to privacy was to be located in the right to life. Only then could they elaborate the attributes of the right to life to include the right to privacy.  Justice D Y Chandrachud, decisively overruled the judgment authored by his own father,  Y V Chandrachud , restoring to the court the legitimacy it lost more than 42 years ago.

That is admirable for more reasons than one, it must have imposed consideration emotional stress on him to overturn a judgment authored by his own father. It is admirable also as it restores the lost legitimacy of the supreme court more than 42 years after the judgment. It is also admirable since it lays to rest the dredged Emergency declared on 26th June 1975. This is  the first time the Supreme Court has acknowledged that it went horribly wrong in putting its faith in the then government to protect the right to life.

The significance of the judgment lies not just in its protection of the right to privacy but in its  insistence that no government, majoritarian or otherwise can violate the rule of law. Life is not a gift of the state but is a natural right, because it is.

The range of questions that can arise and the number of judgments that can be rendered vulnerable are limitless. Is Mizarpur in which the Supreme Court in 2005 upheld the a total ban of slaughter of cows still good law? is the right to eat food of your choice not a fundamental right?  Does beef ban not stigmatize beef eaters and criminalize them in the same way that Section 377 did?  Does the marital rape exemption not violate the dignity and autonomy of a married woman?

The answer my friend as Bob Dylan said, is blowing in the wind!

Indira Jaising is Senior Advocate, Supreme Court of India, and Founder-Trustee, Lawyers Collective. 

Disclaimer:"The views in the article are of the author and do not represent the views of the Invisible Lawyer"

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