fundamental right to privacy

Device Seizures Are Making a Mockery of The Supreme Court’s Landmark Privacy Ruling

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.

In the first week of November, the Supreme Court will hear petitions by five academics – Ram Ramaswamy, Deepak Malghan, Sujata Patel, Mukul Kesavan and Madhava Prasad, along with the Foundation for Media Professionals – which urge the court to lay down guidelines for the exercise of police and law enforcement agencies’ powers to search and seize personal digital devices.

In 2017, a nine-judge bench of the court spoke in one voice as it held the right to privacy to be a constitutionally guaranteed fundamental right implicit in Article 21 of the constitution, and indeed, a synoptic reading of various other enumerated rights in the constitution.

It held that privacy in the digital age cannot be enforced or protected as an individual interest at all unless it is consecrated and fortified as a fundamental right.

The court was aware of the non-foreseeability of harms that arise out of a violation of the right to privacy. The court also elaborated on the various forms and facets of the right, including the privacy of correspondence, privacy as autonomy, and privacy as self-determination over personal information.

Most modern notions of privacy in the digital age use the term ‘privacy’ as shorthand to refer to a bundle of several concomitant rights over personal information – the right of access, the right of erasure, the right to have a say in the manner of its processing, the right of accuracy, the right of control of third-party access, etc.

However, this universally celebrated ruling has had little impact on the state’s behaviour.

The mobile phone is the treasure trove of one’s entire private life. But neither parliament nor any of the law enforcement agencies have seen the need or desirability to evolve any guidelines on how and when they could search the contents of a suspect’s mobile phone; or of its seizure, of the extraction of data from it or the manner in which it is produced or proved before a trial court.

Also Read | Interview: ‘Police Cannot Touch the Data on Your Computer Without Your Consent’

When Arnab Goswami handed in his phone and access to its data to the police, little did he know that his private communications in an instant messaging app would be disclosed to the entire world. It was the same with Rhea Chakraborty.

Even if one were to take an unsympathetic view of Goswami and Chakraborty, given that at that time they were both ‘accused’, the question also pertains to the privacy of others who had been in correspondence with them.

Mobile phones also contain data about other people – contact information, text messages, and emails. When police search a mobile phone, they gain access to this third-party data without the knowledge or consent of the other people involved.

The process by which law enforcement gains access to a phone may require answering a few questions.

Does the search of a phone require a judicial warrant?

Can the scope of the search be limited by that warrant? For instance, if there is reasonable suspicion that a conspiracy to commit a crime had been hatched in a WhatsApp group chat, can investigators check the subject’s communications in other groups, or other instant messaging or email communications, without further reason to believe that those are relevant?

If the scope of that search can indeed be limited, what measures would be needed to ensure that those limits are adhered to? Will the suspect be given a right to be present when the contents are being examined, and to object to the transgression of those limits?

A related question is whether the police should notify third-party data subjects when their data is being searched. This would give third-party data subjects the opportunity to challenge the search or to take steps to protect their privacy.

In addition to privacy, the Supreme Court would also have an opportunity to examine the matter from the point of view of the right against self-incrimination, protected under Article 20(3) of the constitution – also known as the ‘right to silence’.

The issue arises in several ways in relation to the production of devices by persons accused. However, the concern has generally been about the compulsion to divulge credentials, such as a password or a PIN.

There is a divergence of views among courts in other jurisdictions on this aspect. Some have held that police cannot compel a person to disclose their password, even if they have obtained a warrant. These courts have reasoned that disclosing a password is a testimonial act that is protected by the right against self-incrimination.

On the other hand, there are also judgments that hold that police can compel a person to disclose their password if they have obtained a warrant. These courts have reasoned that disclosing a password is not a testimonial act, but rather a physical act that is similar to providing a fingerprint or DNA sample. The Karnataka high court took this view last year.

The guidelines that the petitions seek also involve the protection of privileged communications, such as between spouses, between an attorney and a client, or a doctor and patient, and perhaps more pertinently, information that constitutes journalistic privilege or source secrecy.

The last but not the least concern is the return of devices seized during a search operation. Although Section 451 of the CrPC empowers the court to release seized devices once data has been extracted, in practice, the devices are detained eternally.

Privacy also includes the basic notion that the owner has been deprived access to the phone and its contents, which are required to carry on with life in the digital age.

If the Supreme Court chooses to lay down guidelines addressing some of these concerns, it would not only be ‘filling the gap’, but will in many ways herald a new age where there is some realisation of the landmark 2017 ruling.

Prasanna S. is an advocate-on-record in the Supreme Court and assists the petitioners in Ram Ramaswamy & Ors V Union of India WP(Crl) 138/2021, which is mentioned in this piece.

IT Minister’s Statement That Parl Panel Approved Data Protection Bill False: Karti Chidambaram

The Lok Sabha MP has countered Union minister Ashwini Vaishnaw’s statement that the Parliamentary Standing Committee on Communications and IT had given a “big thumbs up” to the government’s draft Bill.

The journey towards a data protection legislation in India has not been without its twists and turns. In 2017, the Supreme Court, in the landmark Puttaswamy judgment, unanimously ruled that privacy is a fundamental right of Indian citizens. It kickstarted a five-year-long process, which has now seen four versions of the Data Protection Bill.

The latest version of the is the Digital Personal Data Protection (DPDP) Bill, which was released by the Ministry of Electronics and Information Technology (MeitY) for public consultation on November 18, 2022.

A law that frames the contours of India’s digital economy is of vital importance. But has the Government of India, through the DPDP Bill, managed to protect the rights of India’s digital nagriks, or citizens? Depends on who you ask.

In a recent statement, Union minister for Electronics and IT, Ashwini Vaishnaw, said that the Parliamentary Standing Committee on Communications and IT had given a “big thumbs up” to the government’s draft Bill.

What exactly gave the minister this impression, when the Bill has not even been formally referred to the committee for closer examination? The committee, during its sitting in December last year, had invited MeitY representatives to hear their views on ‘citizens’ data security and privacy’, which included a preliminary discussion on the recently released DPDP Bill. The members raised several issues with the Bill. However, since it has not been formally sent to the committee, approval or disapproval of the draft Bill, at this stage, is out of question.

Perhaps it’s no surprise that the IT minister is peddling a false narrative in public; the ruling party has a habit of bulldozing through parliamentary democracy and rule of law.

Also read: Why India’s Proposed Data Protection Authority Needs Constitutional Entrenchment

While its comments and recommendations will be out in the public domain only once the Bill is referred to the committee, I strongly opine that the draft Bill fails to protect the privacy of India’s citizens.

First, the Bill is skeletal in form, delegating massive rule-making power in the hands of the Union government. This allows room for vagueness, ambiguity, and a lack of legislative scrutiny.

Second, according to clause 18(2), why does the government have broad-ranging powers to exempt itself or its agencies from complying with the Act? The now withdrawn Personal Data Protection Bill, 2019, also had broad exemptions to the government and its agencies, but such exemptions were subject to safeguards and oversight mechanisms.

Third, there is a big question mark on the independence of the Data Protection Board. How can the Board be called an “independent” regulator, when the appointments, removal of the chairperson and governing body is decided by the government?

Fourth, is children’s safety and data privacy even a priority for the government? It has given itself the power to exempt entities from complying with the Act while processing data of children. This is concerning, given that a study by HRW found that government apps such as Diksha and e-Pathshala were engaging in practices that infringed the data privacy of children.

The government has also dropped “surveillance” from the scope of “harm” under the Bill. Technology companies, including edtech firms, will now get unimaginable access to track and monitor children and use their data for profit-making purposes.

Finally, does the DPDP Bill satisfy the fourfold test of privacy, i.e., legality, legitimate aim, proportionality, and procedural safeguards, as laid down by the Supreme Court in the Puttaswamy judgment?

The IT minister ought to address these concerns about the Bill, and publish ‘public feedback’ on the draft, before he accords any imaginary approval.

The author is a Lok Sabha MP and a member of the Standing Committee on Communications and IT.

Merit Must Predominate Other Factors in Appointments to Judiciary: Justice R.F. Nariman

Justice Nariman, who became the apex court judge on July 7, 2014, disposed of over 13,500 cases and delivered historic verdicts including the declaration of privacy as a fundamental right.

New Delhi: Supreme Court judge Justice Rohinton Fali Nariman, who demitted office after serving over seven years on Thursday, said merit must predominate other factors in appointments to the judiciary.

“I believe nobody has a ‘legitimate expectation’ to come to this court. I believe there is a ‘legitimate expectation’ in the people of India and the litigating public to get a certain quality of justice from this final court,” Justice Nariman said at his farewell organised by the Supreme Court Bar Association (SCBA) .

“For that, it is very clear, merit must predominate, subject to other factors. But merit always comes first,” he added.

Justice Nariman, the illustrious son of noted jurist Fali Nariman, said “it is time more direct appointees are elevated to this bench”.

“I would also say, and exhort, those direct appointees who are asked, never to say ‘No’. It is their solemn duty, having reaped so much from the profession to give back,” Justice Nariman said.

Also Read: On basic Structure Doctrine, Ruling’s of the SC’s First Five Judges Inspire Hope

Commenting on his experience as a judge in the top court, Justice Nariman said these seven years have been the most gruelling years of his life.

“It is no cakewalk. When I was on this (lawyer) side I had no concept of what was on the other side. I have been on both sides. This side (judges) is much more difficult. You have to read much more. I enjoyed writing judgements and at the end, it worked out well,” he said.

Justice Nariman, who became an apex court judge on July 7, 2014, disposed of over 13,500 cases and delivered historic verdicts including the declaration of privacy as a fundamental right, setting aside of IT Act provision empowering arrests, decriminalising consensual gay sex and permitting women of all ages to enter Kerala’s Sabarimala temple.

Justice Nariman, born on August 13, 1956, became a senior lawyer in 1993 and Solicitor General of India on July 27, 2011, before being elevated as a judge of the apex court on July 7, 2014.

(PTI)

‘Not Surprised But Offended at Invasion of Privacy’: Jharkhand Journalist on Pegasus List

Rupesh Kumar Singh covers issues of displacement and arrests of tribal people who have been framed as Maoists in Jharkhand. Three phone numbers belonging to him were on a list of potential targets for surveillance by Pegasus.

New Delhi: Rupesh Kumar Singh is an independent journalist based in Jharkhand’s Ramgarh. Three phone numbers belonging to him were on a list of potential targets for surveillance by Israeli spyware Pegasus, The Wire found.

Following are excerpts from The Wire‘s chat with him.

How did you react when your name surfaced in the Pegasus Project?

When I found out that my wife and I were on the snoop list, I was deeply offended. Not surprised, but really offended. How can you invade someone’s privacy? In the present system, our incumbent rulers have basically captured democracy. It is the first step towards capturing democracy. I believe the current situation in India is an undeclared emergency for journalism.

What one is doing in one’s bedroom, or who they’re talking to, is being tracked. To silence journalists like me, they are tapping the phones of our family members too, who are not even concerned with our work.

What does it mean for journalists in a democratic country to be spied on?

India is a democracy, a well-established one. But in the present system, our incumbent rulers have basically captured democracy. It is the first step. As far as journalists like you and me are concerned, we depend on our sources. We get a lead on the phone about a problem locals are facing, or a movement they have started. They invite us. Why would anyone risk calling us anymore? They’d be afraid. I’ve faced it before.

Now, I know I was being spied on. Whenever I phoned someone and informed them that I was coming, some other people would reach the location before me and threaten people who had invited me. Such incidents have also happened.

Also read: Snoop List Has 40 Indian Journalists, Forensic Tests Confirm Presence of Pegasus Spyware on Some

I think it is a disgrace for a democracy. The current government is conspiring to capture the democratic system. In fact, they have already put it into action. The current situation in India is, I believe, an undeclared emergency, especially for journalism.

Look at the series of recent incidents – the Income Tax department raids at the offices of Dainik Bhaskar, and Bharat Samachar.

Dainik Bhaskar had done some really good reporting during the second wave of COVID-19. And Bharat Samachar’s Brijesh ji has been asking difficult questions from the Uttar Pradesh government.

The way journalists have been spied on by Pegasus, people are bound to feel threatened. It is extremely dangerous for a democracy. This government has thrust an Emergency-like situation on the country. In the days ahead, we will have to breach the blockade imposed by the government, if journalism has to survive. We will need to reconnect to our sources. These are testing times for journalism.

Why do you think your name was included in the list?

As natural resources are looted and exploited in our country, especially in the state where I live, I cover news related to such issues.

So, most of my stories revolve around the issue of displacement in Jharkhand, the protests of the displaced people, encounters by security forces in the state, and the massive arrests of tribal people framed as Maoists. A survey conducted by Father Stan Swamy, who recently passed away, revealed that more than 4,000 innocent people are behind bars in various Maoist-related cases.

I was trying to bring the struggle of Adivasis, especially against the loot of natural resources, on a wider spectrum, and was writing and speaking about it. Not only the people of Jharkhand, but capitalists from India and abroad have been invited by our government to partake in this loot of our natural resources. This is why I think my name was on the list.

Also read: In Bastar, a Journalist Is Caught in the Crossfire Between Police and Maoists

After the list was made public, what kind of reactions did you receive?

When my name cropped up, I received positive response from my friends and those who know my work. Those who are struggling in Jharkhand, and many who are struggling all over the country, called me up that very night and extended support. They told me, ‘We support you for the questions you raise that have landed you in this situation.’

The people whose issues I voice, those who are my leads, they also called me up and told me that they support me. There is no need to be afraid as they are also not frightened. So, I have the support of the public, especially the progressive people and those who are struggling. I am not talking about godi media. In my village there are a number of Hindi newspapers and channels, but no one contacted me. I don’t pursue journalism for them. I do it for the public and the public is with me and those who are struggling are with me.

Several people have asked me to take the matter to the Supreme Court, and said that they would crowdfund for me. I have received such messages from different villages.

What do you think about the government denying all allegations of snooping?

First of all, the government at the Centre is a cowardly government and full of lies. The whole world saw how so many people died due to oxygen shortage and how it (the government) lied about it in the parliament. The NSO claims that it is hired by governments. So, if it was not our own government that tapped the phones of so many journalists, bureaucrats, ministers, and opposition leaders, and some other country was carrying out surveillance of these people, then our country’s sovereignty is in grave danger.

If you claim that our country is all-powerful and sovereign, then why are you not taking action against it? It should be a question of the honour of the country. How can people of another country spy on our country’s citizens? If that is not the case, then the government is lying. Otherwise, they should find out as it is a threat to the sovereignty of the nation.

Also read: ‘Union Govt Sitting Idle’: Mamata Banerjee Announces WB Govt’s Inquiry Panel Into Pegasus Row

Would you take the matter to court?

As I told you, I am a freelance journalist. I cannot afford to fight a case in the Supreme Court.

But I have the support of the people. Yesterday, I discussed it with some advocates and sought advice. As they are also from Jharkhand, they will seek further advice about the workings of the Supreme Court and the expenditure. But I believe if a group of journalists were to file a case jointly, it would have a greater impact. But anyway, I am getting advice and in my personal capacity, I will definitely try to file a writ petition in the Supreme Court.

Although I am not in a condition to afford it, I will give it a try because the government has invaded my privacy and has proved itself to be completely anti-constitutional.

The constitution has given us rights. Recently, the Supreme Court also ruled on August 24, 2017, that the right to privacy is an individual’s fundamental right. Since they have tampered with our privacy, we will definitely go to court. Article 21 of the constitution also asserts the right to privacy. So, we will definitely take the matter to court. But it will be better if we do it jointly.

The Pegasus Project is a collaborative investigation that involves more than 80 journalists from 17 news organisations in 10 countries coordinated by Forbidden Stories with the technical support of Amnesty International’s Security Lab. Read all our coverage here.

Three Kerala Cats Can Eat the Biscuits They Like in Lockdown, Thanks to the HC

The court held that the choice to rear pets was traceable to the fundamental right to privacy conferred under Article 21 of the Indian constitution.

New Delhi: Narayanan Prakash, a cat owner, was denied a vehicle pass to go purchase ‘Meo-Persian’ biscuits for his three cats. Concerned for the survival of his pets, he filed a writ petition in the Kerala high court, which has ruled in favour of the fortunate felines.

Justice Shaji P. Chaly held that the choice to rear pets was traceable to the fundamental right to privacy conferred under Article 21 of the Indian constitution.

Prakash had submitted that he is a vegetarian, and doesn’t cook non-vegetarian food at home. In a conversation with The Wire, he said, “They are addicted to these biscuits. They don’t take any other food, it is a delicious biscuit.”

His three cats are called Mookie, Kappi and Kunnikappi.

Mookie (meaning white cat), a white cat who is about five years old, recently underwent a spaying procedure where her uterus was removed. Pratheesh Narayanan, the son of N. Prakash, said to The Wire, “When Mookie was born, her mother died. So it was my father who took care of her till date. She had medical issues from the day she was born.” He talks about a recent bout of illness the cat had gone through, which required constant care and even being admitted into the hospital. “He spent a lot of money and time for Mookie alone,” his son says.

The second cat Kappi (meaning black cat) aged 7 or 8 years old, is a black cat and was born with five brothers and sisters. Six years ago, the neighbourhood cats went through a devastating bout of pan leukopenia, also known as feline distemper, a virus which took a toll on them all. Kappi’s sister succumbed to the disease and died. Kappi also contracted the illness, but made a valiant recovery.

“Her medical condition became so bad the doctors said she would not last one week,” said Narayanan.

With constant care and hydration, Kappi made such a miraculous recovery in two days that even the doctors were amazed, he added. Prakash however noted that Kappi emerged from the ordeal as a changed cat, and now is very quick to anger, but is also very childlike, and gets upset if she is left alone. As a result, Prakash spends as much time as he can with Kappi. However, in a heartwarming turn of events, Kappi also recently had two kittens, Kappachi and Manjima, pictured above with Prakash.

The third cat is called Kunnikappi (meaning small black cat) and is between 6 and 7 months old. Prakash says that he is in fine health and as such was not particularly worried about him.

He further said that the Cochin pet hospital from where he used to buy the biscuits was at a distance and the police had denied his request for an online pass.

In court, Prakash argued that animal feed and fodder has been listed as essential services in the guidelines issued by the Union home ministry.

The three cats have been raised on the biscuits ever since they were able to take solid food, and as such, going without the biscuits would have put Prakash in a difficult situation.

Also read: As Poor Indians Suffer Amidst Lockdown, Constitutional Morality Leaves the Country

Justice Chaly noted that petitioner’s choice to remain vegetarian, not to cook non-vegetarian food in his home, rear cats, and purchase the feed for his cats were facets of the right to privacy.

“The choice of the petitioner not to cook non-vegetarian food is a well protected facet under Article 21 of the Constitution of India and he has no choice than to procure food from outside. These cluster of legal circumstances leads me to a sound conclusion that over and above the right to life conferred on the animals by the Apex Court in the judgment in Animal Welfare Board , every citizen has a right to enjoy his life and liberty conferred under Article 21 of the Constitution of India by having a choice of rearing pets. So much so, a citizen’s choice to rear pets is traceable to his fundamental right to privacy as recognised by the Apex Court in Puttaswamy’s case, which in turn is a facet of his right under Article 21,” the judgment reads.

The bench comprising Justices A.K. Jayasankaran Nambiar and Shaji P, Chaly relied on the Supreme Court judgment in Animal Welfare Board of India vs A Nagaraja, where the right to life of animals was recognised.

“The SC went ahead of merely safeguarding animal welfare, to recognising a right and dignity in animals to live lives free from cruelty,” the high court observed.

The bench held that the Supreme Court decision in Nagaraja (Supra), led to a reinterpretation of the Prevention of Cruelty to Animals Act while considering Article 51A(g) and (h) of the constitution, that encourage “compassion for living creatures” and “development of scientific temper and humanism”.

In a triumph for cat lovers everywhere, the court allowed Prakash to travel to purchase the cat biscuits while carrying a self-declaration, along with a copy of the high court order.

“While we are happy to have come to the aid of the felines in this case, we are also certain that our directions will help avert a “CATastrophe” in the petitioner’s home,” the judgment concludes.

“I liked that part of the judgement,” Prakash says. “It was very funny. Initially I was little frightened to argue before that bench. But when we started arguing it was very comfortable.”

Modi’s Quest for Digital India Made Staying off the Grid Harder Than Ever in 2017

The Supreme Court recognised the fundamental right to privacy in 2017, the same year the country witnessed some of the most large scale violations of privacy to have ever occurred.

The Supreme Court recognised the fundamental right to privacy in 2017, the same year the country witnessed some of the most large-scale violations of privacy to have ever occurred.

A deep vein of technological determinism has always run within Narendra Modi’s Digital India. Credit: Twitter

As we bid farewell to 2017, The Wire looks back at some of the markers of disruption that affected different spheres, from politics and economics to technology and films.

You can describe people in words, or you can describe them in numbers. As a rule, neither system is perfect, but in general, words tend to create bonds while numbers tend to create distance. Technology, and its poorer cousin e-governance, though seems to tilt towards numbers and in 2017, in India, the tilt got a lot steeper.

A deep vein of technological determinism has always run within Narendra Modi’s Digital India. Over the last year, it has made itself more clear than ever. From demonetisation, to the Goods and Services Tax (GST) to 360-degree-Aadhaar projects, there appears to be nothing that cannot be solved by a string of numbers in a centralised database.

The messiness involved with governance has stopped being viewed as a problem brought on by contending and noxious interests. Instead, there is a subtle, if consistent, push towards handing over the process of administration towards a technological system that can supposedly fulfil a set of explicit specifications.

This is why in 2017, nearly a billion Indians were forcefully nudged into re-verifying their SIMs with Aadhaar – a development that was brought on over concerns of terrorists getting their hand on SIM cards – even though the government knew the underlying enrolment system was broken enough for Pakistani spies to be able to get their hands on legitimate Aadhaar numbers.

Or why the GST network was pushed out as a crippled system – in Modi sarkar, some technology is always better than no technology – even as its crucial goal of reducing tax evasion was hamstrung by unwieldy rates, lobbying and political flip-flops.

Also read: Aadhaar Mess: How Airtel Pulled Off Its Rs 190 Crore Magic Trick

The “governance-as-an-engineering-problem” isn’t a new idea globally or even in India. From the 1970s to the 1990s, Indira Gandhi and Rajiv Gandhi were both infatuated with idea of shaping India as a country and its bureaucracy with computers and home-grown technology. While they had mild success, both their efforts were ultimately overshadowed by a number of developments from 1999 onward.

However, even back then, the threat of computerised governance leading to a surveillance state was voiced loudly.

In August 1985, Rajiv Gandhi wanted his party’s MPs to digitise and formalise their work with the help of computers. The Indian Express flashed the news with the headline “Computer to Watch Cong MPs”, and went onto report that the computer would now give “periodic warnings” about the lapses of MPs and that it would also store details of their “adverse activities”.

The Times of India even went to bat over whether it would violate the privacy of MPs over potential privacy violations, with an editorial that called the move “wrong and dangerous”. The implication, as India Today wrote in late 1985, was that Rajiv did not trust his party and that it would make the Congress’s MPs “even more docile”.

In 2017, the Supreme Court recognised that all Indians have a fundamental right to privacy.

However, in the year that was, the country also witnessed some of the most egregious and large scale violations of privacy to have ever occurred.

The sprawling and viral proliferation of the Aadhaar programme into every walk of life lead to over 100 million Aadhaar numbers being leaked by central and state government agencies in direct violation of the Aadhaar Act. What’s worse is that nobody was held responsible for the abysmal information security practices that lead to the numbers being made public.

Private and corporate entities tried their best to match Indian government. As The Wire reported and tracked, data breaches from Reliance Jio, Zomato and McDonalds exposed in some way, shape or form the personal details of (at the very minimum) 30 million Indians. Again, no one really held responsible.

Online surveillance manifested in small ways (In Kerala, school authorities reportedly gained unauthorised access to an Instagram account, leading to the suspension of a boy and girl) and the bizarre – The Wire reported in mid-2017 how Indian police allegedly helped a division of UK’s Scotland Yard hack into and monitor the email accounts of Greenpeace activists.

India’s formal surveillance infrastructure, which boomed after the 26/11 attacks, crystallised in 2017. As we reported, the centrepiece of the Indian government’s surveillance efforts, the Central Monitoring System (CMS), was made fully operational by the first quarter of 2017.

The functioning of the CMS, however, still remains exceedingly opaque. All we have are stray data points – in 2014, a SFLC report, which quoted an RTI reply, revealed that up to 9,000 telephone interception orders are issued by the central government every month..

The story of surveillance in 2017 was also one of state governments realising that they should not be outdone by the Centre. In West Bengal, chief minister Mamata Banerjee amended an outdated set of laws to create a near-Orwellian world of surveillance that would track and monitor dissenters and protestors.

In Andhra Pradesh, a tender floated earlier this year for the state’s “Integrated People Information Hub” (IPIH) gave us a glimpse of how local surveillance networks by India’s police will evolve across the country.

Hyderabad’s IPIH, while billed a smart policing mechanism, is a natural outcome of two developments over the last few years. One, ‘Digital India’ (in this case, the rapid creation and storage of citizen data) is growing at a pace that is not contained by legal safeguards, a serious information security culture and a proper regard for civil liberties. Two, centralised databases that were slowly being created and populated over the last few years are now starting to talk to each other.

Consider the data sources that IPIH mixes and matches: CCTV footage, fingerprint data, call data records (CDR) using entity matching and other data mining algorithms. It also takes into account other variables such as family demographics, address, date of birth, mobile number, contact number, driving license, voter ID, Aadhaar number and a ‘crime number’.

As The Wire reported at the time: “While there are indeed serious issues for the police to take care of, smart and predictive policing can easily turn into total blanket surveillance from all forms”.

Digital residue and persistence

It’s strange how India’s technology-driven development agendas are carried out in pairs. In the 1990s, Rajiv Gandhi had Sam Pitroda.

Today, Modi has Nandan Nilekani – an odd partnership considering that in the run-up to the 2014 elections, the Gujarat chief minister slammed the Infosys founder, calling him a “person who has 1000 crore but no Aadhaar”.

“They have a person who has 1000 crore but no Aadhaar. They made him candidate. He must answer what has been done with hundreds of crores of rupees meant for Aadhaar card. In the end the Supreme Court had to intervene,’’ Modi said of Nilekani and the Aadhaar project in April 2014.

By August 2014, Modi had changed his mind. Perhaps what prompted a re-think were Nilekani’s ideas for what Aadhaar, after propping up India’s welfare system (which has shown middling success so far), could go onto radically change how Indians interact with their central and state government.

Also read: Should States Have the Power to Enact Their Own Data Protection Laws?

In a world filled with post-facts, the truth is approached through repetition. The message that is transmitted and repeated most often is the message that wins. Today, Indians wake up everyday to SMS-es that threaten the shutdown of basic services (their mobile phone connections, their bank accounts) if they don’t start connecting Aadhaar to every part of their lives.

Nilekani’s last book, Rebooting India, is an illuminating if startling read on how the UID project can slowly link the rest of India’s society together, layer within layer. The book, which was released in 2015, is prescient only if how much of it has gone onto become a part of the Modi government’s agenda. The national health policy released in March 2017, which proposed the creation of a national health information network that would be linked to Aadhaar as a means of sharing patient data is pure Nilekani.

Resistance and the road ahead

What should India’s citizens – who are wary of how Aadhaar, the interconnection of massive centralised databases and an utter lack of legal safeguards are starting to snowball – think about doing?

There are, of course, tech hacks that help ward off the dangers of using Silicon Valley services. And WhatsApp’s decision to switch on end-to-end encryption last year has probably done more to help safeguard the personal privacy of most Indians than anything else in the last two decades.

However, the personal information of most Indians still remains shockingly leaky – the going-rate in 2017 for the personally identifiable information of up to one lakh people was anywhere between Rs 10,000 to Rs 15,000.

But what has become clear in 2017, is that we need to push our elected representatives into doing more, into caring. Most government officials and members of parliament are exceedingly aware of India’s surveillance state. In private interactions, they warn you to switch off your phone or leave it in a room outside their office. Services like Gmail, which come with the stigma of being run by a foreign company, are still preferred to local alternatives offered by the National Information Centre.

“Surveillance doesn’t affect only criminals, it affects everyone individually, and collectively. Question it. Currently, if the government eavesdrops on you illegally, you would never know. The government should notify all subjects of surveillance after the surveillance is done, so that citizens can challenge illegal surveillance. Ask for better protection of your rights,” said Chinmayi Arun, Executive Director at the Centre for Communication Governance.

“We have been very careless about letting the state bully us into getting Aadhaar cards. Now our data is integrated, leaking and being sold to unknown third parties for all we know. If we go the Chinese way, this will affect our health insurance premiums, eligibility for public services and much more that we do not anticipate at present. We must show a little more concern for our future and our rights.”

The first venue that the fight for our rights will be tested next year is at India’s data protection committee. Set up towards the end of this year, with public consultation meetings scheduled in the first week of January, the committee is off to a decent start. However, it will still only scratch the surface of what needs to be done.

2017: A Rocky Year for the Constitution at the Supreme Court

As we go into 2018, there is little doubt that there is a lot at stake when it comes to issues of fundamental rights, the status of the individual, and the idea of democracy.

Supreme Court. Credit: PTI

As we bid farewell to 2017, The Wire looks back at some of the markers of disruption that affected different spheres, from politics and economics to technology and films.

On January 2, 2017 – it’s first working day of the year – a narrowly divided Supreme Court delivered its judgment in Abhiram Singh vs C.D. Commachen. A majority of four judges ruled that the Representation of the People Act prohibited any kind of appeal to caste, community, language, and religion during an election campaign. They based their holding on the view that these markers of identity were inherently divisive, and impeded the formation of the universal citizenhood that was so important to democracy. Three judges, however, dissented, noting that electoral politics was a stage where historical discrimination – that had always been identity-based – could be addressed and remedied, and that the only feasible way of doing this was by appealing to identity.

In hindsight, Abhiram Singh was the curtain-raiser for a year when the constitution’s fault-lines – its navigation of the fraught relationships between individual, community, and state – came to the fore. In a number of significant cases, the court had to decide what, precisely, was the position of the individual within the normative universe of the Constitution: was (wo)man the “measure of all things”, or were her claims subject to the claims of powerful centres of authority, such as the state and the community? In Shayara Bano vs Union of India, popularly known as the “triple talaq case”, the court came perilously close to completely submerging individual rights within community claims. Two judges out of five held that personal law systems (inherently unequal and discriminatory towards women) were protected by Article 25(1)’s near-absolute guarantee of the freedom of religion. While the court ultimately struck down the practice of instant triple talaq, the swing opinion – authored by Justice Kurien Joseph – was riven by ambiguity, and its impact on future constitutional cases involving religious claims remains to be seen.

And then, in the middle of the year, came the nine-judge bench’s decision in K.S. Puttaswamy vs Union of India, where the court unanimously held that the constitution protects the fundamental right to privacy. There is little doubt that Puttaswamy will anchor any account of the Supreme Court’s constitutional jurisprudence of 2017. Not only did it affirm the fundamental right to privacy, but in six separate opinions, the judges articulated a concrete vision of the relationship between the individual and the state: a relationship in which the individual rights to dignity, to autonomy, and to liberty, were paramount, and the fundamental value of privacy – whether it was the privacy of the home and other spaces, the privacy of personal information, or the privacy of intimate decision-making – was in how it protected, promoted and fulfilled individual autonomy and dignity.

Also read: Why Criminalising Triple Talaq is Unnecessary Overkill

However, even as the Supreme Court affirmed the primacy of the individual in the privacy judgment, its handling of a concrete case before it raised questions. In the now-infamous Hadiya case, which has still not been resolved, the court require multiple hearings before it delivered a lukewarm affirmation of an adult woman’s choice of marriage partner. Hadiya’s case had become a murky one, with allegations of forced conversion and “hypnosis”, stories of ISIS recruitment, and a court-ordered NIA investigation; but the opinion of Hadiya herself was solicited only after many months and repeated hearings, and her decision was respected only partially by the court. Hadiya’s case shows that whatever the judgment in Puttaswamy might have said, the vindication of individual rights and the primacy of the individual under the constitution will remain a struggle in the times to come.

The opinion of Hadiya herself was solicited only after many months and repeated hearings, and her decision was respected only partially by the court. Credit: PTI

This assumption is strengthened by numerous court orders that were not as momentous as the ones discussed above, but are problematic nonetheless. Despite multiple hearings, the court has not yet recalled its interim order making the playing of the national anthem mandatory in cinemas; the court also refused to set aside the Bombay high court’s direction that Jolly LLB 2 be vetted by a panel of lawyers before it could be screened; and most recently, in an unreasoned order, it upheld a state-imposed book ban from Karnataka. But what Puttaswamy does (perhaps) show is that the struggle is not always un-winnable.

The court will have further opportunities to deal with these issues as 2018 begins. In the third week of January, it will resume hearing the Goolrokh Gupta case, which involves the question of a Parsi woman’s status upon marrying outside her religion. The court is also scheduled to hear – after a two-and-a-half-year delay – the constitutional challenge to Aadhaar, a case that will place front and centre the relationship between individual and state under the constitution.

Also read: Exploring the Individual vs Community Debate on Triple Talaq and Privacy

While fundamental rights were at the core of the court’s decisions in 2017, it also dealt with two hugely important cases concerning constitutional structure and the idea of democracy. The same day that it delivered judgment in Abhiram Singh, the court also decided Krishna Kumar vs State of Bihar. In Krishna Kumar, the court significantly narrowed the power of the executive to pass ordinances. Not only did it hold that ordinances would be subject to judicial review (albeit to a limited extent), it also held that, subject to a very narrow class of exceptions, acts done through the duration of the ordinance would also lapse if the ordinance lapsed. In doing so, the court set aside two previous decisions that had equated ordinances to “temporary laws”, and had therefore held that acts done during the course of an ordinance would continue to have effect even after the ordinance itself was allowed to lapse. What motivated the court’s judgment was the insight that while ordinances had been a regular tool of governance under the colonial regime, and had indeed been carried over into the Indian constitution, their utility in a democratic society had to be severely curtailed and regulated – ordinances were, at best, a subordinate form of lawmaking, necessitated in emergencies, but under no circumstances could they supplant parliamentary legislation. The impact of this judgment remains to be seen.

And then, towards the end of the year, the court heard another case dealing with constitutional structure: that of NCT of Delhi vs Union of India, which concerned the distribution of powers between the elected Delhi government and the Lieutenant-Governor. The post of the LG, of course, is another colonial holdover, from a time when people were subjects instead of citizens, and territories were to be “administered” instead of governed. The constitution is dotted with such colonial holdovers, and Article 239AA, which laid out Delhi’s legislative and executive arrangements, reflected this tension. The court’s judgment is due when it reopens early next year, and will be a significant indicator of how far it is willing to deepen democracy under the constitution.

It has been a rocky year for the constitution at the Supreme Court, and as we go into 2018, there is little doubt that there is much to play for when it comes to issues of fundamental rights, the status of the individual, constitutional structure, and the idea of democracy. 2018 promises to be as interesting and eventful as 2017.

Disclaimer: The author was formally involved in Puttaswamy case, the National Anthem case, the Jolly LLB 2 case, and the NCT of Delhi vs Union of India case, and is formally involved in the Aadhaar case.

Gautam Bhatia is a Delhi-based lawyer. He reviews books for the Strange Horizons magazine and on his blog.

SC Constitution Bench to Decide Validity of Aadhaar Law in November

The petitioners argued that people were being denied access to basic needs such as food and adequate nutrition, midday meals in schools, rehabilitation benefits due to bonded labourers.

The petitioners said that people were being denied access to basic needs such as food and adequate nutrition, midday meals in schools, rehabilitation benefits due to bonded labourers.

The deadline to furnish Aadhaar cards in order to keep availing of welfare benefits was earlier set at September 30. Credit: PTI

Last week, the AG took adjournment to seek instructions on whether the time limit would be extended from December 31, 2017 to March 31, 2018, for those who did not possess Aadhaar to obtain one. Credit: PTI

New Delhi: A five-judge constitution bench of the Supreme Court will, in the last week of November, take up the issue of mandatory possession of Aadhaar card for availing social security benefits, and continuation of banking services by linking Aadaar with PAN.

Chief Justice Dipak Misra heading a bench which included Justice A. M. Kanwilkar and D.Y. Chandrachud told Attorney General (AG) K. K. Venugopal that he would set up a constitution bench in the last week of November to decide the validity of the Aadhar law assailed by a bunch of petitions.

Earlier the AG refused to spell out the Centre’s stand on extending the time limit for possession of Aadhaar card for availing various social service benefits. Venugopal said that the government was prepared for an early hearing as nearly a hundred notifications issued by various departments were under challenge. He urged the CJI to set up a constitution bench for this purpose. The AG submitted that falsehoods have been spread about Aadhaar linking, including how Aadhaar is a must for CBSE students to appear in their Class 10 and 12 examinations. He opposed the demand for passing interim orders to stay the notifications.

Last week, the AG took adjournment to seek instructions on whether the time limit would be extended from December 31, 2017 to March 31, 2018, for those who did not possess Aadhaar, to obtain one, and that no coercive steps would be taken against those who did not get Aadhaar card. Today the AG refused to give any such commitment or assurance, and urged the court to expedite the hearing to decide the validity of the Aadhaar law.

Senior counsel Aryama Sundaram, appearing for the Maharashtra government, said that the apex court had earlier upheld the law to link Aadhaar with PAN number, as well as the linking of Aadhar with mobile phones, taking into consideration the security concerns of the state. Senior counsel Shyam Divan, Kapil Sibal and Gopal Subramanium pressed for interim orders pointing out that Aadhaar had been made mandatory for a host of schemes.

The petitioners contended that the biometric data and iris scan that was being collected for the issuance of Aadhaar card, violated the fundamental right to privacy of the citizens, as personal data was not protected, and was vulnerable to exposure and misuse. It was argued that Aadhaar card is an invasion of privacy and a terrible violation of basic human rights. They challenged the various notifications issued by the Centre insisting on Aadhaar card for availing various benefits, including midday meal scheme, scholarships, admission, domestic air travel, and mobile phone.

Also read: The Different Ways in Which Aadhaar Infringes on Privacy

The petitioners said Aadhaar scheme couldn’t be made mandatory. The Centre has attempted to inflate the figure to argue an impossibility of exclusion as the figures amount to puffery. They pointed out that Aadhaar enrolment has been without adequate verification, and in many instances, the Centre has itself stated that the enrolment has been over 110% of the recorded population in many states, raising concerns of fraud within the system. In states such as Delhi, enrolment stands in excess of 115%.

They argued that people are denied access to basic needs such as food and adequate nutrition; midday meals in schools; rehabilitation benefits due to the rescued bonded labourers; rehabilitation benefits due to the families of victims and the survivors adversely affected by the Bhopal gas leak.

The Centre, in its response, had said that Rs 49,650 crore had been saved in two years through transfer of benefits under the Direct Benefit Transfer Scheme on account of Aadhaar. There is large public interest involved in continuing such savings.

It said the government has also been disbursing benefits and subsidies to beneficiaries through Aadhaar-based authentication, minimising the use and wastage of paper. There are vital benefits both for the residents who are availing services through Aadhaar-based authentication and savings for the state. The notifications ensure that no genuine person is denied of any benefits because of lack of Aadhaar.

Also read: Mandatory Aadhaar and Bank Accounts: How Much of This Is Legal?

SC questions West Bengal government on Aadhaar

Meanwhile a bench of Justices A.K. Sikri and Ashok Bhushan questioned the locus standi of the West Bengal government to file a petition challenging the Aadhaar law. Observing that in a federal set up, a state government cannot challenge a law passed by parliament, the bench asked chief minister Mamata Banerjee to file a petition challenging the Aadhaar law in an individual capacity.

Justice Sikri asked Kapil Sibal, appearing for the state: “How can a state file such a plea? In a federal structure, how can a state file a plea challenging parliament’s mandate?”

Sibal submitted that the labour department of the state has filed the petition, as subsidies under its schemes have to be given to children. Sikri told the counsel: “You satisfy us how the state can challenge it. You know better than us. We know it is a matter which needs consideration. Tomorrow if Centre starts challenging the laws passed by the state where will it lead to? Let Mamata Banerjee come and file a petition as an individual. We will entertain it.”

Sibal however maintained that the state was entitled to file such a plea, but said that they would amend the prayer in the petition. Meanwhile, the bench issued notice to the Centre on another petition filed by an advocate Raghav Tanka, challenging the linking of mobile phone numbers with Aadhaar and granted four weeks time to the Centre to file its response. He said, of late, the government of India is making Aadhaar necessary to avail of a service, which has no direct link with the Consolidated Fund of India. He submitted that the exercise of making it necessary to link Aadhaar for all subscribers constricts rights and freedoms that citizen has enjoyed all this while, unless they part with their personal biometric information – not to the government, but now to private telecom service providers – in violation of the directions in the Right to Privacy judgment, which is unconstitutional.

Supreme Court to Set up Constitution Bench to Hear Pleas Against Aadhaar

A bench, comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud, said the larger bench would commence hearing on these petitions in the last week of November this year.

A bench, comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud, said the larger bench would commence hearing on these petitions in the last week of November this year.

Supreme Court in New Delhi. Credit: PTI

New Delhi: A constitution bench will be set up to hear petitions challenging the Centre’s decision to make Aadhaar mandatory for availing various services and government welfare schemes, the Supreme Court today said.

Earlier today, the apex court questioned the West Bengal government for filing a plea challenging the Centre’s move to make Aadhaar mandatory for availing benefits of various social welfare schemes while asking how a state can challenge the mandate of parliament.

It also asked West Bengal chief minister Mamata Banerjee to file the plea as an individual.

Recently, a nine-judge constitution bench had held that the Right to Privacy was a Fundamental Right under the constitution. Several petitioners challenging the validity of Aadhaar had raised the issue that the scheme was in violation of privacy rights.

Senior advocates Gopal Subramanium and Shyam Divan, appearing for those opposing the Aadhaar scheme, had sought urgent hearing on the petitions.

The Centre had on October 25 told the apex court that the deadline for mandatory linking of Aadhaar to avail the benefits of the government schemes has been extended till March 31 next year for those who do not have the 12-digit biometric identification number and were willing to have it.

The petitioners had termed the linking of the Unique Identification Authority of India (UIDAI) number with bank accounts and mobile numbers as illegal and unconstitutional and strongly objected to the CBSE’s move to make it mandatory for students to appear for exams.

Divan, appearing for some of the petitioners, had earlier contended that final hearing in the main Aadhaar matter, which is pending before the apex court, was necessary as the government “cannot compel” citizens to link their Aadhaar with either bank accounts or mobile numbers.

Exploring the Individual vs Community Debate on Triple Talaq and Privacy

The Supreme Court seems to have tread a course which marks a definitive, if not an entirely radical, departure from India’s original constitutional project of social transformation through state intervention.

The Supreme Court seems to have tread a course which marks a definitive, if not an entirely radical, departure from India’s original constitutional project of social transformation through state intervention.

How should we talk about this break in conceptual terms, and what must we remain wary of as it begins to capture India’s constitutional imagination? Credit: Wikimedia Commons

The two recent Supreme Court judgments striking down the practice of instant triple talaq and declaring a fundamental right to privacy bear the potential of being regarded as important flag-posts in postcolonial India’s hesitant journey towards liberty, equality and fraternity. A majority of the justices on both benches sought to prioritise guarantees and entitlements conferred upon individuals in the constitution over concerns of a disproportionately intrusive governmentality and an unrestrained sphere of religious group autonomy. While doing so, however, they seem to have tread a course which marks a definitive, if not an entirely radical, departure from India’s original constitutional project of social transformation through state intervention, limited only by a reluctant concession to minoritarian exceptionalism.

There is naturally a growing sense of hope and expectation around this purportedly refreshing reconfiguration of our constitutional landscape. But its vindication would depend upon whether at all these pronouncements translate into actual remedies on a consistent basis, especially for a wide cross-section of vulnerable subalterns, both inside and outside the formal system of adjudication. Rather than speculating about a contingent future, we wish to raise a couple of more primary questions with respect to the present, assuming that something momentous might indeed be on the cards. How should we talk about this break in conceptual terms, and what must we remain wary of as it begins to capture India’s constitutional imagination?

It has justifiably been presupposed that framers of the 1950 constitution preferred community allegiance over individual freedom, in case of an irresolvable conflict between the two. However, we believe that this opposition was not as deep-seated as it is made out to be, since the two concepts were understood very differently then from the way in which they are approached today. For most national thinkers in the anti-colonial tradition, individual and community were too closely imbricated in one another, and their segregation into isolated unrelated entities was inconceivable. This made the broad church of Indian liberalism, beginning with Raja Rammohan Roy and extending up to Jawaharlal Nehru and beyond, substantially communitarian in nature for most parts. In a similar manner, the modern conception of community, be it of religion or of the nation as a whole, which instilled life into the anti-colonial movement, was hardly ever hostile to the individual as such. The best exemplification of their coming together in the early independence period can be found in the enactment of a progressive, although highly flawed, Hindu family law code. This is of course not to suggest that the anti-colonial imagination was fashioned in a homogenous political space of mutual consensus, but merely to emphasise that the more consequential tension was between communitarian liberalism of nationalist thought and counter-liberalism of dissenting voices such as B.R. Ambedkar and Mahatma Gandhi.

Also read: The Courts’ Recent Rulings Are a Reminder of the Judiciary’s Importance

Once we de-centre the individual versus community debate in constitutional discourse, it may seem that the sole feature left for investigation in respect of fundamental rights is an interventionist state vested with extensive lawmaking and police powers, constrained only by a lack of political legitimacy to interfere in minority affairs. But what such a narrative would then miss out on is the concept of inner life, which was singularly foundational of anti-colonial thought and has remained most generative of political power ever since. It is possible to overlook this critical dimension due to an unreflective tendency to approach Indian constitutionalism through Euro-American constitutional categories, as a result of which inner life gets conflated with the private domain and the life of the state with that of the public. Whilst inner life in India did indeed encompass relations of intimacy within homely precincts, the notion of home was itself heavily shaped by predominantly upper-caste male members and their fascination with an outer world of colonial civil society, to which they had very little access. On the other hand, India’s political culture could not be sufficiently sanitised into a modular bourgeois public, typified by a robust commitment to rule of law and human rights, since its umbilical cord remained attached to homely intimacies. This is best exemplified by the fraternal violence of partition, involving Hindus, Muslims and Sikhs, and its recurrent possibilities.

Supreme Court. Credit: Wikimedia Commons

Normatively-driven intellectuals have always aspired for a neater alternative to the chaotic complexities of conceptual categories associated with India’s political history. No wonder then, that they are much excited by the two judgements which represent for them an unequivocal separation of public and private, and a guarded primacy of secularism over religion, thereby paving the way for India’s entry into the global constitutional club of mature liberal democracies. In this euphoric moment, we must not forget that even the original constitutional model premised on an inner life of civilisational nationalism was not averse to borrowing the best of ideas from other supposedly advanced jurisdictions. What has certainly changed however, is that socialist principles of organising society have come to be replaced by liberal and neoliberal ones. But just as Directive Principles of State Policy did not succeed in converting India into some socialist utopia, we must not expect the mere arrival of a strong privacy jurisprudence to transform it into its liberal counterpart overnight. This is so because such concepts derive meaning only while at work, in their grappling with messy details of different constitutional settings.

As far as the triple talaq case is concerned, rather than signifying a triumph of purely secular reason, there is here a further instantiation of a uniquely Indian solution for the problem of gender-unjust personal laws across religious communities. Although the initial constitutional aspiration was indeed for a uniform civil code with a temporary exception implicitly carved out for unwilling religious minorities, this exception has gradually come to be normalised, particularly with respect to Muslims, largely owing to their complete marginalisation in representative governmental institutions. Under such circumstances, barring some egregious instances to the contrary, courts have wisely managed to replace the insistence on uniformity in laws with uniformity in rights. Such a change in tack has shielded Muslim personal laws from Hindu right-wing demands for their abolition, while at the same time increasingly infusing them with constitutional values.

Also read: The Triple Talaq Ruling Is a Step Forward, but There Is a Long Way to Go for Gender Justice Laws

It is not only that a strict separation between public and private, religion and secularism has failed to materialise in India. More so the case today is that these sets of categories have come to be inextricably entangled with each other globally, as can be discerned from worldwide phenomena such as an increasing privatisation of a secretive, non-transparent state, a ubiquitous mass culture of publicity and an unapologetic theologisation of secularism, supplemented by a simultaneous secularisation of religion. For those thinkers who regard constitutionalism as essentially a moral enterprise, these intertwinements would no doubt be extremely disconcerting. But equally more troubling is their uncritical expectation from constitutional concepts formed in the heyday of the classical modern European state to work seamlessly in all local and global contexts.

Our intention here has not been to speak in favour of or against any of the normative categories discussed hereinabove. What we wish to convey is that legal and constitutional analyses must not remain confined to a formal text and its exegesis, but engage instead with larger social and political realities which condition them. At this level of interpretation, the only crucial disjuncture from India’s original constitutional model has been a gradual shift away from unalienated sociabilities to a growingly deracinated sense of being in the world. This deracination manifests not only in anomic possessive individualism, but also in the treatment of religion as intellectual property of the community alone. In such a scenario, the bigger worry is that whatever was virtuous in our older concepts may no longer be available to us. If viciousness is increasingly becoming the order of the day, be it in public or private, secular or religious spheres, the only ethical option that we may be left with is to transcend this deracination in creative and imaginative ways, regardless of our preference for whichever concept.

Moiz Tundawala is a PhD candidate at the Department of law, London School of Economics and Political Science, working on the nature of constituent power in postcolonial India. Salmoli Choudhuri is a PhD candidate at the Faculty of History, University of Cambridge, working on Rabindranath Tagore’s legal and political thought in global intellectual history.