The Right to Privacy Judgment

Justice K.S. Puttaswamy vs Union of India judgment, popularly known as the Right to Privacy judgment is undoubtedly one of the landmark judgment of present times. The 9 judge bench unanimously held the Right to Privacy as a Fundamental Right implied under Article 21 of the Indian constitution. In this Article, I will open up my apprehensions on this particular judgment.

One would agree that in a given circumstances we take a call about future based on at least a faint idea of what is going to happen. However, in this judgment, it seems to me that the judges have taken the call based on their fear about future rather than a clarity of way forward. I do support the Right to Privacy as a Fundamental Right but the high degree of uncertainty around its implementation which is the result of lack of clarity is what pinches me the most. If we see previous interpretations of Article 21 such as Right to clean environment or Right to go abroad, one can say that these interpretation do not face too much of an explanation to be understood. The Right to Privacy is also too wide a right to be incorporated in Article 21 as it itself is capable of giving rise to a number of rights as hinted in the judgment itself.

My second apprehension about its derivation from Article 21. It is here where I wish that the constitution had the Right to Property and privacy was protected by creating several aspects of identity as individual property. The Parliament repealed the Right to Property without much of an explanation. Even Economic Survey pointed out this ambivalent attitude of the State towards property as an area which needs reform. On one hand we embrace the capitalist form of development and on the other hand, there is no Fundamental Right to Property. If today such a right was present, the Supreme Court or the Legislature might have utilized it to bring the Right to Privacy under the ambit of Fundamental Rights.

The Supreme Court has asked the Centre to frame provision detailing the Right to Privacy. Right to Privacy is essential, but its impact would be properly assessed only after we have a detailed provision and working of the Right to Privacy in hand.

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Judicial Activism or Retreating Parliament

Judicial activism has been a much talked about topic in the newspaper this year. The Indian constitution has provided for a balance of power among the three arms of the government. Judicial activism is supposed to be disturbing this fine balance. In this article, I am discussing Judicial activism with reference to two major legislation passed in recent times.

The two major legislations are- The Aadhaar Act 2016 which is related to the delivery of subsidies by the government using Aadhar card and the GST Act which was a constitutional amendment aimed at subsuming several indirect taxes into one tax. Both these acts have the capability to affect the entire population of India. However, the Aadhaar Act has been under judicial scrutiny since its passage while that is not the case in the GST Law. One of the prime reason lies in the way these bills were passed in the Parliament. The government doesn’t have the required majority in Rajya Sabha and since the GST Bill was a constitutional amendment Bill, the Rajya Sabha exercised due deliberation power and the government was forced to bring some necessary changes. But in case of Aadhaar Bill, the government introduced it as a money bill, thereby bypassing the power of Rajya Sabha in bringing necessary debate and changes. The GST Bill had been in pipeline since a decade, hence a good amount of time was spent on deliberation while the Aadhaar Bill was not scrutinized with that merit as Rajya Sabha doesn’t have substantial power over a money bill. Hence, the crux of the issue is that while the GST Bill was subjected to proper deliberation and scrutiny by both the houses, the Aadhaar Bill bypassed such a deliberation in the Rajya Sabha.The result is in front of our eyes- the stage of deliberation has now moved from the constitutionally mandated stage of the Parliament to the Supreme Court.

The three arms of government are not disjoint but are complementary. Thus if one arm abdicates its duty, the other arm is bound to fill the space. The following would serve the best conclusion of this manuscript (source)

“The acute needs of the developing countries of the Commonwealth have sometimes produced an approach to constitutional interpretation that is unashamedly described as “activist”, including by judges themselves. Thus in India, at least in most legal circles, the phrase “judicial activism” is not viewed as one of condemnation. So urgent and numerous are the needs of that society that anything else would be regarded by many— including many judges and lawyers—as an abdication of the final court’s essential constitutional role…”

Combating fake news by using the principle of herd immunity

The menace of fake news is now a widely accepted phenomenon. The internet, which is a vehicle of progress and holds promise of opportunities to billions of users, is now interspersed with fake news and sub-standard articles. This seemingly true looking, highly non-discernible fake news is a challenge to the sanctity of the internet and is one of the greatest threat to this vehicle of progress. Interestingly technologies which were tools for designers like Photoshop, video editing tools and not to mention Artificial Intelligence which apart from being used to make wonderful tools for mankind are being used to produce more and more realistic looking fake news day by day. Not only that algorithms of websites like the Facebook is being exploited to ensure fake news articles are well targeted and get the widest attention. The consequences are varied with different levels of intensity. At the individual level, it is leading to depressions, false reasoning, and radicalization. At higher levels consequences are taking an intense turn like mob lynching, riots and recently at the national level it resulted in false propaganda and radical election results. Eminent personalities, world leaders, state, civil societies, individuals- everyone has acknowledged the presence of fake news and the damage it is inflicting on people lives. Now the question is how can we combat this issue?

A lecture in my recent science class hit me with this idea which can be a probable solution to this issue. My science teacher was trying to explain how a high resistance is offered to the spread of a contagious disease within a population, if a sufficiently high proportion of individuals are immune to the disease, especially through vaccination. He referred to the principle as herd immunity. The idea is simple. If suppose a community consists of three individuals A, B and C, among whom A and B are vaccinated against polio, the chances of C getting polio virus is drastically reduced. This is because A and B who are vaccinated act as death chamber to polio virus circulating in the community and thereby decreasing the chances of C getting infected by the virus. Now suppose instead of polio virus we as a community have to combat fake news. What required is we as a member of the community acting as death chamber to the fake news article. For this, we have to vet every news article that seems suspicious and report it so that such articles are removed. Rather than casually sharing every pleasing article that comes across us, we must ensure we have done some background check so that we are certain about the credibility of whatever we share online. When we perform such checks, it ensures such article is prevented from spreading and an individual or a society as a whole is saved from the consequences.  Seems like a lot of work given the variety and intensity of spreading fake news articles. But let’s face it- the internet as we use today became a resource by the contribution of not few people but millions of people. And we as a responsible user of the internet should ensure this repository is not spoiled and it does not end up being used as a tool against humanity and principles we stand for. Let us work together to redeem what we believe is the original purpose of the internet.

Citizen’s Manifesto- an instrument for expression of individual demands in a democracy

Recently elections were held in five states in India. Once again it was fought on the basis of agenda cropped up by various political parties with the only aim to grab power. The manifesto promises ranged from jobs to loan waiver for farmers and what not. That brought to my mind how can these parties claim to know what is good and bad for me without even consulting to me in person? The constitution has granted universal adult franchise based on the rational that an adult, irrespective of his/her background, is capable of deciding what is good for him and the society. This forms the basis of the democratic process adopted in our country which aims to empower each and every citizen to put forward his/her demand and participate in the development of the country. Then why am I not consulted in this democratic process? The process of election, which was designed in place to empower me as a citizen, is making me feel like I’m handing over my power to someone who claims to know what is good for me and my country. When I tried to find out the answer to these questions, it took me back to the first general election of the independent India from where this trend started to take a form.

Generally, a common man define something alien to him on the basis of his first-hand experience of that thing. Democracy which is defined and known to educated people as “a govt. by the people, for the people and of the people” got its field definition by common people in India during the first general election in 1951. And the definition that was ascribed to democracy by the people of India was this- an exercise of vote giving in an election. Not only that, if we closely examine few trends that we see or relate to an election nowadays, all got started cementing from this general election itself. One among such trends was the publication of manifestoes by political parties to gather support from the masses. The leaders at that time were visionary with the aim to develop the country and hence assumed it as their prerogative to publish the manifesto deciding what is good and what is bad for the masses at that time. Partly it can be considered reasonable given the high rate of illiteracy among the masses. Still, it defeats the faith posed by the constitution by granting universal adult franchise which considered voting as an expression of opinion by citizens rather than a mere selection between choices cropped up by someone else. The following image of democracy developed in the masses- that democracy is nothing but a ceremony of election carried over a small period of time in which we ultimately hand over our power to a representative who decides our and our country’s fate, which is published in the manifesto, and such a representative can be held responsible only for the next election. So democracy which is supposed to be a process of continuous participation of citizens in the working of the government is reduced to a few day carnival of the election fought among parties based on proximal and populist agendas. What citizen is supposed to do- vote and let their representatives decide upon everything. Nowadays this everything has expanded to include what to eat and what to wear! Etc. As election after the election took place this image of democracy got cemented in the mind of citizens. Now it is assumed totally the responsibility of parties to come up with the future course of our country. And the parties come up with as appealing and as reactionary policies to mobilize people and win the election. The true expression of people opinion is long disassociated from the democratic form of governance in India. The form of governance meant to empower people became a tool to drain away power to political parties and then they decide what to do and what not.  As citizens get more passive roles, they become less enthusiastic in participation. Low turnout in an election could be an outcome. Lack of trust from the system is another consequences. The motivation to be vigilant decreases and issues of corruption, inefficiency, inaction etc. increases.

So how to solve this problem of increasing passivity of citizens in a democracy? A radical solution to this is the citizen’s manifesto. A citizen’s manifesto is simply a manifesto released by the citizen to put forward their expectations from the elected government. It will be a continuously updated document in which demands of the people will be recorded. The advantages are many. First, it will repose the power to decide what is important to the people back in their hands. Now rather than parties telling people about the future course, citizen’s manifesto will be utilized to develop the future course of action. And it would get tough for parties to sway individuals based on populist agenda as each citizen will have his own list of agenda which they can use to crosscheck with the promises offered by the parties. Secondly, since the people have put forward these demands and the voting and subsequent election of representative was guided on those lines, they will be motivated to be vigilant about the implementation of those demands and hence one-time accountability will be gradually transformed into a continuous evaluation.

In the initial part part of this article, I discussed how democracy which was meant to empower people failed to achieve so due to its reduction to one-time action of voting. The above two prime arguments clearly show how that power is reposed back to the citizens and this will propel active participation of citizens in the democratic system. As ill effects like corruption, inefficiency, govt. inaction etc. were the outcome of increasing passivity of citizens in democracy, once this happens the ill effects will also slowly wither away. Thus citizen’s manifesto is that instrument which will motivate individual participation in the democracy and make it continuous, making us realize democracy in its true form. Isn’t the idea behind a vibrant democracy also nothing but this?