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Right To Privacy

Right To Privacy

I had a shock when my pension was fixed at Rs 1507 per month when I quit the service of The Tribune in 2009. I was expecting at least Rs 3000. I did not even verify how the Employees’ Provident Fund Organisation arrived at the amount. A lot of things have happened since I became a pensioner, including the arrival of what Prime Minister Narendra Modi calls the Good Days, but the pension remained the same good old Rs 1507.

In 2009, the pension was sufficient to meet the cost of my monthly medicines. Today it is sufficient to meet the needs of medicines for about 15 days. I was told to appear before the Bank Manager every year in November with an application quoting the PF account details so that he could certify that I was AJ Philip, not the late AJ Philip.

Last November I went to the bank to get the certificate that I had not become history but I found to my horror that there was no such application form available. I was advised to get an Aadhaar Card without which I won’t get the pension. I knew that the Supreme Court had given a ruling that the Aadhaar Card could not be insisted upon for availing of government services. 

I had objections to the Government insisting on such a card  when I had a passport, a driving licence, a PAN card and several credit and debit cards. In the meantime I joined a non-government organisation as Secretary and Chief Executive (Honorary). Though I did not draw any salary or pecuniary benefits from the NGO, our Accountant insisted that I must have the Aadhaar Card. Caught between my principled opposition to Aadhaar and the interest of the organisation, I compromised on the former.

One reason why I did so was the law Union Finance Minister and part-time Defence Minister Arun Jaitley got passed by presenting it as a Finance Bill which meant that it did not need the approval of the Upper House where the BJP did not have a majority at that time. The law made it mandatory for all Income Tax payers to link their PAN cards with Aadhar Cards. Finally, I said “Tata Bye-bye” to my conscience and got an Aadhar Card like the school children who get their tasteless mid-day meal from the government by flashing their Aadhar Cards.

Our Accountant was happier than me, as he could quote my Aadhaar number in various forms he had to routinely submit. I sent a letter to the Employees Provident Fund office concerned giving a copy of the Aadhaar Card. I thought I had complied with the statutory requirement. No, I had not and they stopped giving me pension from April this year. My letter and Aadhaar card had no effect on them.

The Chief Provident Fund Commissioner happened to be my friend whom I met almost every week. I did not want to trouble him but finally I approached him for help with a copy of the letter and the Aadhaar Card that I sent to the Provident Fund office concerned. It had an effect, as I got a call from the PF office asking me to go to the nearest PF office to give my biometric details there.

I told the lady that I had the Aadhaar Card but she told me that the PF office should also have my biometric details. Earlier, a bank manager could give a life certificate and one could get pension. Now even when the Chief Commissioner personally knows that I am alive and I have the Aadhar Card, I must give my biometric details to the EPF office to get my pension. It was claimed that the Aadhaar Card was sufficient for a host of government services. I realised that it was a myth. I still need to go to the EPF office to give my biometric details again.

Why am I opposed to the Aadhaar Card? Do you know what happens when a person is jailed? He will not be able to wear his own clothes. He will have to wear the clothes given by the jail authorities. He will also be given a number. He will no longer be Mr So and So, son of Mr So and So. Instead, he will be Prisoner Number 1120. He will thereafter be referred to by that number alone. In short, he loses his identity. Of course, I refer to ordinary prisoners, not the ones like Sasikala in Tamil Nadu who is allowed to wear costly Kancheepuram saris and flit in and out of jail at night to meet her party MLAs.

There are Christians who believe that when AntiChrist rules the world man will lose his identity and he will be treated like beasts with a number. Their favourite quotation is “This calls for wisdom. Let the person who has insight calculate the number of the beast, for it is the number of a man. That number is 666” (Revelation 13:18). If I attempt to explain the verse, the whole issue of this journal would be required. Suffice to say, we will lose our identity.

When US Visa-seekers were asked to give their fingerprint and iris details, there was protest from many sections of the people. Little did they realise that around the same time, transport authorities in Delhi had started gathering eye and fingerprint details from driving licence applicants. Nobody questioned it at that time.

Privacy is now a myth. Every time I move out of my house, CCTV cameras installed in public places like road junctions, ATMs, banks, schools, housing societies, hotels etc take my pictures and store them in their computers. Recently, I visited an office on the request of a senior executive there.

The receptionist issued me a pass which had my photograph taken while I was standing at the reception. If the receptionist had warned me about the photograph, I would have kept my hair in order, if not combed it. Every time I open my fly in a loo, I do not look for a CCTV camera but sensible women tell their sisters to check and ensure that such a camera did not capture them while “spending a penny”, a British euphemism for passing urine!

All this is done in the name of security. Does anyone know how many billions of rupees are spent in the name of fighting terrorism? I have a neighbour in Kerala who has installed CCTV cameras at his house. If a burglar enters my house by jumping over the front wall, my neighbour’s camera is sure to catch him.

It is against this context that the Supreme Court verdict on Privacy should be seen. Though the Aadhaar Card was the proximate cause, another, smaller bench would decide whether the Centre could insist on it for delivery of government services. The verdict given by a nine-member Constitution Bench is a shot in the arm for the citizen. It has ended the vagueness on the right to privacy those in power have been using to curtail democratic rights.

What the court said is clear, the right to privacy is akin to a fundamental right, the denial of which can be challenged in a court of law, unlike the Directive Principles which are not legally enforceable. It is a major setback for the Modi government which has been claiming that there was no right to privacy because the Constitution was silent on the subject. 

The beauty of the Constitution is that it allows the apex court to interpret and analyse Constitutional provisions and create case laws which are as valid as the laws passed by Parliament. The Right to Privacy will now be as integral to the Constitution as Article 21 which says, “No person shall be deprived of his life or personal liberty except according to a procedure established by law”.

This right has been held to be the heart of the Constitution, the most organic and progressive provision in our living constitution, the foundation of our laws. It corresponds to the  Magna Carta of 1215, the Fifth Amendment to the American Constitution, Article 40(4) of the Constitution of Eire 1937, and Article XXXI of the Constitution of Japan, 1946. To that has been added the Right to Privacy.

Clever Union ministers have interpreted the verdict as upholding the government’s stand. It is like adopting Sardar Patel as the BJP’s icon when the truth is that the Iron Man  lived a Congressman and died a Congressman. He was also the one who found wisdom in banning the RSS following the assassination of Mahatma Gandhi! To use another simile, it is like the impotent in Vaikom Mohammed Basheer’s story claiming all the illegitimate babies in the village as his own.

True, no freedom is absolute. As the saying goes, “Your right to swing your fist ends where my face begins”. What does this mean? I have the right to speak freely in the public square. This does not infringe on the rights of someone listening to me. 

He has the right to listen to something else. He also has the right to leave the area in which I am speaking (assuming it is a public place). He even has the right to express a differing opinion. But he does not have the right to  silence my speech simply because he does not like it, or he does not want to hear it. And that is precisely what has been happening.

Remember the case of the 52-year-old Mohammad Akhlaq Saifi who was killed at Dadri on September 28, 2015. A mob barged into his house, found some meat in his refrigerator, claimed that it was beef and he was lynched to death. They did not hear his protestations that it was mutton. The state lent credibility to the charge by sending the meat for forensic examination to check whether it was beef.

Forget Saifi, one of whose sons was serving in the Indian Army. A Muslim leader of the BJP in Nagpur, who was actively bringing Muslims into the party fold, was lynched to death. Because he was carrying beef on his scooter. The law in Maharashtra allows the police to search the kitchen and find out whether beef is cooked or stored. As Justice Chelameswar, one of the nine judges, says, “I do not think anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life”.

I can only hope that the Supreme Court would reject outright the Maharashtra government’s appeal to let it persist with the law under which a person caught cooking beef had to prove that it was not beef. Section 377 of the Indian Penal Code that criminalises homosexuality will also become a thing of the past if the verdict is taken to its logical culmination.

It is not the bother of the state what two adults do in the privacy of their home just as it is not the bother of the state whether a married couple has oral or anal sex. True, even a married couple cannot have sex in public as it outrages public decency. In other words, reasonable restrictions are fine. There is no doubt that the verdict will have a bearing on many other laws, existing and contemplated. For instance, does the freedom of religion law in some states stand judicial scrutiny when the citizen has the right to believe in any faith?

To come back to the Aadhar Card which needs to be linked with the PAN card. Now imagine what happens if the government, which is capable of harassing those whom it does not like, delinks the cards in a particular case. The person concerned would not be able to file his income tax returns which is a punishable offence. He can simply be arrested and sent to jail. The Unique Identification Authority which issues Aadhaar card says the data is secure with it, though questions have been raised about the incontrovertibility of the claim.

A pensioner needs to prove that he is alive to claim pension. Why should the state and its organs believe technology, more than the people? Why should a citizen be reduced to a faceless number? It is in this context that I see a ray of hope in the verdict. 

Justice Sanjay Kaul, another of the nine, writes underlining the doctrine of the living tree: “While the tree appears to be great and magnificent, apparently incapable of further growth, there are always new branches appearing, new leaves and buds growing. These new rights are the rights of future generations that evolve over the passage of time to suit and facilitate the civility of posterity”.

Let the people have the freedom to eat what they want to eat, dress what they want to wear and believe what they want to believe. The state has no right to interfere in any of these. The court has crowned itself with glory by declaring the Right to Privacy as a fundamental right. Here is a salute to the judges!

(Published on 28th August 2017, Volume XXIX, Issue 35)