In the recent war on Privacy, the government has taken a novel stand in the Supreme Court of India that Right to Privacy is a constitutional right under Article 300A of the Indian Constitution but is not a fundamental right. Article 300A saves the right to property of the people and reads as under-quoted:
No person shall be deprived of his property save by authority of law.
Interestingly, this was earlier a fundamental right under the now deleted Article 31(1) of the Constitution. It was removed as such vide 44th amendment of the Constitution under the Janta Government led by Morarji Desai. The explicit reason for removal was upholding the spirit of Constitution by promoting Socialism as added in the Preamble to the Constitution vide 42nd amendment under the Emergency Government led by Indira Gandhi. How ironical! But the bigger irony is consideration of Privacy as Property just to justify its exclusion as a fundamental right.
Privacy indeed has trappings of a Property in the present paradigm. The data has value, which, at present, is getting reflected best in the valuation of IT companies in the bourses, and Privacy can indeed be defined even solely in terms of personal data: the EU has been doing it pretty successfully. However, the traditional view under our Constitution is that of Privacy as being essential part of Liberty of persons. Article 21 of the Constitution guarantees “Personal Liberty” of persons as a fundamental right.
Seervai, in his commentary on the Constitutiton, has taken a very narrow view of the word “Personal Liberty” to mean injunction against physical restraint except by a procedure established by law, and probably he was the only one who kept holding this view after A. K. Gopalan was burried in its grave by Maneka Gandhi r/w R. C. Cooper. But the present government, which is fond of digging graves and most of whom read Seervai, have dug the grave yet again and brought out the skeletons of A. K. Gopalan to claim that Liberty under the Constitution is qualified by the word “Personal”. But I think this is the biggest mistake they have committed. This has clearly exposed their designs and removed all obfuscation. The argument of the AG that Privacy is a qualified fundamental right is just a corollary of Seervai’s qualification of “Liberty”, which has no value in the Indian jurisprudence except for some academic learning in the legal writing skills — which I certainly don’t follow, and going by how the SC is being assisted by the Ld. Counsel for UIDAI, it doesn’t look like the SC will follow it anymore either.
However, coming back to the core of this article, i.e. Privacy and Property, I present an argument that Property itself is inalienable from Liberty and thus from Privacy. Socialists and communists, who abhor all private property, would obviously not have anything to do with Privacy if it is considered as Property –though no communist has ever answered the simple questions I have posed to them in another post on my blog. In any case, they don’t recognize the very concept of rights itself. However, unlike Sanghis, they do recognize the concept of an individual and his inseparable property, without which he shall have no Dignity, and they won’t mind recognizing Privacy as part of that Dignity realm — which, in practice, anyways gets expanded to Silver, Gold and Platinum houseboats in Kerala. But I don’t think their wisdom is coherent enough to provide any workable definition of Privacy — anyways, they hardly have a political voice now. But their wisdom indeed provides the fountainhead for an inextricable link between Liberty/Privacy and Property, for the hallmark of Dignity is Liberty. The Capitalists led by the US, who recognize Right to Property as a fundamental/natural right, just can’t have an argument against this inextricable link between Liberty and Property. Therefore, those who want to further their ulterior designs disconnect Privacy from Liberty, but as I said the AG has already exposed the ulterior designs of this government, who seems to be acting at the behest of the Capitalists.
Having proposed the above inextricable link, I obviously can’t support the 44th amendment removing Right to Property as a fundamental right. The 44th amendment is an offspring of a violent encounter between the Emergency protagonists and the Socialism opportunists, which hungrily gobbled the fundamental right of the people right at its birth, and I hope the Supreme Court has minds discerning enough to read through this conspiracy of the politicians.
If some of the blunders of the history can be undone by recognizing Right to Privacy as a fundamental right, it would be so very salutary, and I know the Supreme Court judges are innovative enough for doing it, but only if they will.
P.S. It is clarified that the reference to the government above in the context of Article 300A and “Personal Liberty” is to the State of Maharashtra. The reference wrt qualification of Privacy as a fundamental right is also more appropriately attributed to the Ld. Counsel for the State of Maharashtra only. Regrets.