Privacy is the Swaraj of our times

At a time of gathering darkness, when India is reeling under drastic economic measures of questionable benefit, a shrinking ambit of civil liberties, deadly challenges to the freedom of expression, and a public discourse that increasingly marginalises and humiliates minorities and women, the Supreme Court judgment in K.S. Puttaswamy v. Union of India, pronouncing the right to privacy as a fundamental right guaranteed by the Constitution, comes as a ray of light. In words of startling power, Justice D.Y. Chandrachud’s judgment reads: “Dignity cannot exist without privacy… Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”

Privacy is not explicitly written about or protected in the Constitution, but the nine-judge Supreme Court Bench delineates very carefully how privacy must be presupposed to make sense of Article 19 (freedom of expression, association, residence and occupation), as well as Article 21 (right to life and personal liberty). As the lawyer Gautam Bhatia writes, this landmark judgment “will impact the interplay between privacy and transparency and between privacy and free speech; it will impact state surveillance, data collection, and data protection, LGBT rights, the legality of food bans, the legal framework for regulating artificial intelligence, as well as many other issues that we cannot now foresee or anticipate.” While citizens battle the government’s bid to impose Aadhaar as a universal identification system, the Hindu Right attempts to enforce a beef ban and make “cow protection” mandatory, criminalisation of same-sex love continues, and personal information is usurped by social media and technology companies, this ruling becomes a strong foundation on which to shore up our endangered freedom.

Interchangeable concepts

It is the Hindi term for “privacy” — “nijata”, an odd coinage, literally meaning something like, “the state of having something as one’s own” or “mine-ness” or “one’s own-ness” — that alerts us to the deep philosophical relationship between privacy and our fundamental modern term for freedom, which we owe to Mahatma Gandhi, “swaraj”. As we know, swaraj means “self-rule”, “self-determination” or “the sovereignty of the self”. But the particle here indicating self or selfhood, swa-, is in fact a lot like the nija- of nijata. In Sanskrit, and thereby in Hindi, nija means pertaining to the self, that which belongs to the self, which cannot be alienated from the self. Both swa and nija, then, encompass the self, as well as all that belongs to it, goes along with it, cannot be taken away from it. We could, at least from a purely linguistic perspective, posit a word like nijaraj, which would mean the same as swaraj; we could just as well use swatva, which is synonymous with nijata. Elementary etymology here reveals that both concepts in our political lexicon, freedom and privacy, swarajand nijata, are semantically so close as to be practically interchangeable.

It is ironic but also fitting (if we assume that the arc of the moral universe is long but finally bends towards justice) that the same Gandhi who challenged the British Empire with his call for India’s swaraj now returns through the idea of nijata to help us counter a dispensation which, though popularly elected by a majority, tends to undermine our freedom at every turn. Gandhi had warned in his seminal tract, Hind Swaraj, that it wouldn’t be enough to merely replace British rulers with Indian ones. For swaraj to really come about, it would have to fashion itself as an equal and opposite force to British Raj, not just materially but also morally. It would have to entail a distinct definition of political selfhood, a radically different idea of the place of violence in determining political power, and a space for truth at the heart of a new definition of politics. India freed itself from the yoke of the colonial master, but 70 years after decolonisation and Gandhi’s assassination, it appears we have to wage yet another war of independence, yet another freedom struggle.

Privacy and democracy

Privacy is a concept that has been explored as the very jugular vein, so to speak, of democracy. In the American Constitution (Fourth Amendment), it flows close to matters of property, security and surveillance, logically so for a country whose democratic self-definition rests on strong conceptions of individual liberty, a panoptical state, and a capitalist economy. Thanks to philosophers Michel Foucault and Giorgio Agamben, we see its connections with the ancient origins of democracy in Greek and Roman thought, through an analysis of human life into zoe (animal existence) and bios (political existence), two conjoint spheres in which different but complementary rights accrue to the same individual by virtue of our indivisibly dual existence in nature and in politics, as creatures and as citizens. In the literature on the Holocaust, thinkers and survivors like Hannah Arendt and Jean Améry write against torture and other forms of extreme violence in the concentration camp as the ultimate violation of the individual’s privacy, where the very limits of bodily integrity are breached to then break the human spirit.

Seven decades after the followers of Hindutva ideology murdered Gandhi, once more we have to stand up to the worst tyrannical tendencies that have captured power in India through the mechanisms of right-wing populism and illiberal democracy. Yet again Hind Swaraj has to become our primary political project, only this time against a Hindu Rashtra; not an external ruler but the enemy within. Gandhi helped Indians to see that swarajhad to be rule by the self, but also rule over the self; in other words, that freedom is a vector, but paradoxically it has both inward and outward directionality. Freedom is about mastering our own unruly self, especially its primordial urge for violence and domination — hence the importance of ahimsa, overcoming the desire to harm others that is rampant within us. But it is also about the individual keeping at bay a coercive state — whether that state is foreign or native is less significant, because ultimately all states become authoritarian if allowed to encroach on our autonomy and invade our very being.

In an electoral democracy, ironically, the vote itself can be distorted as a warrant for such encroachment — by both state and non-state entities, governments and corporations equally — into the innermost regions of what the Supreme Court calls our “repose”, “sanctuary”, and “intimate decision”. As lawyer and legal academic Menaka Guruswamy wrote in the New York Times, through the privacy judgment, “the court… cleansed its own institutional reputation by choosing constitutional morality over majoritarian morality… with their jurisprudence on privacy, the justices have emerged as champions of personal liberties.” It will be considerably harder now for the government to get into our eyeballs and fingertips, our bank accounts and cell phones, our bedrooms and kitchens, our minds (whose freedom is guaranteed by Article 19) and bodies (whose freedom is guaranteed by Article 21). While the ruling in Puttaswamystands solidly in the way of the ubiquitous threat to our privacy, nijata, the struggle for the self’s sovereignty, swaraj, spelled out more than a century ago by Mahatma Gandhi, remains ongoing and open-ended for the people of India.

Ananya Vajpeyi is currently a Visiting Fellow at the Centre for Research in the Arts, Social Sciences and Humanities, Cambridge University

Source: The Hindu