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A fundamental error

Anniversaries can be reasons to celebrate the present or reminisce about our past. When we do the latter, it is a call to memory, often signifying an unfulfilled promise and a preference for nostalgia. August 24 will mark the first anniversary of the unanimous affirmation of the right to privacy by a nine-judge Bench of the Supreme Court. The court imposed upon the government a clear obligation to make a law safeguarding a person’s informational privacy, commonly referred to as data protection. The right to privacy judgment, which had six separate opinions that converge into a unanimous decision, noted in the words of Justice D.Y. Chandrachud and Justice S.K. Kaul that the Union government had tasked a committee headed by Justice B.N. Srikrishna to formulate such a law in July last year. This committee has produced a set of recommendations that run into 213 pages, and a draft law titled the “The Personal Data Protection Bill, 2018” running into 112 sections. Despite being formed within the ambit of, and even being bound by, the Right to Privacy judgment, the recommendations do not only undermine the legal principles within it but also re-interpret them.

Two key points

While this claim may seem provocative, it is based on a reading of the privacy judgment. First, it expressly stated the primacy of the individual as the beneficiary of fundamental rights. Second, it rejected the argument that the right to privacy dissolves in the face of amorphous collective notions of economic development. The priorities of the Srikrishna committee stray from these two basic points. Its report, titled “A Free and Fair Digital Economy: Protecting Privacy, Empowering Indians”, keeps to the apparent pecking order that its title signals: the common good and the economy come first and individuals second. In justifying this framework, the report runs into tremendous difficulties as it attempts to put together a regulatory agenda that reconciles the expansion of the digital economy and state control with the principles of the right to privacy judgment.

These difficulties reveal themselves in a misunderstanding of the fundamentals of constitutional law. These are made all the more difficult to follow by the heavy use of jargon and a reliance on foreign and academic authorities, which are often cited without proper context. The trouble begins with the report’s conception of the state. The state’s purpose under the Constitution, says the report, is “based on two planks”. First and foremost, “the state is a facilitator of human progress” and is “commanded” by the Directive Principles of State Policy “to serve the common good”. Here, Fundamental Rights, which help protect against a state “prone to excess”, come “second”. This ignores the very structure of the Constitution in which the chapter guaranteeing enforceable Fundamental Rights stands on its own, preceding the one setting out unenforceable Directive Principles of State Policy.

In doing the so, the report attempts to open the right to privacy to allow the state the most convenient means by which to realise its regulatory agenda. Enabling the government’s convenience is not an objective laid out by the right to privacy judgment. Constitutional guarantees of rights do not automatically bend even to the pursuit of constitutionally legitimate aims. Instead, a rigorous three-part test set out in the right to privacy judgment makes clear that it is for the government to measure and justify its actions at every point that it seeks to make inroads into our privacy.

To justify its priorities, the report proceeds on the premise that upends the historical consensus of what Constitutions and rights exist to do: protect every citizen of the republic against incursions into the vast repository of freedoms that exist naturally. The report says that “to see the individual as an atomised unit, standing apart from the collective, neither flows from our constitutional framework nor accurately grasps the true nature of rights litigations. Rights (of which the right to privacy is an example) are not deontological categories that protect interests of atomised individuals.” Then, it proceeds to conclude, “Thus the construction of a right itself is not because it translates into an individual good, be it autonomy, speech, etc. but because such good creates a collective culture where certain reasons for state action are unacceptable.” Much of this language is inscrutable to even the legally trained mind.

To the extent that its import can be made out, the argument seems to be a strained, convoluted and ultimately unconvincing attempt to re-litigate the case of the government in the right to privacy issue. To the report’s view that the individual ought not to be the spotlighted while making a law, the right to privacy judgment is in stark contrast. In Justice S.A. Bobde’s words, “Constitutions like our own are means by which individuals – the Preambular ‘people of India’ – create ‘the state’, a new entity to serve their interests and be accountable to them.” Moreover, in Justice Chandrachud’s words: “The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well being of the community is determined.”

Too much jargon

It is the report’s approach to rights that is perhaps of most concern for the health of our democracy. Its statement that rights are not “deontological categories” is both unnecessarily complicated in its wording and patently untrue in its content. By using language like this, the report, already a technical document published only in English, alienates ordinary Indians from engaging with a subject of real significance to each of us. Our fundamental rights, whether to speech, equality or practice our religion or profession, are all essential facets that make life worth living and are held up by the right to privacy with regard to information about us. In stating that rights are not things which are essential in themselves is an unacceptable position to take under our Constitution. In fact, in the right to privacy judgment, Justice J. Chelameswar approves of the principle that liberty — which is the family to which the right to privacy belongs — is valuable in a democracy not only as a means but as an end in itself.

Reframing the right

It is not often that nine judges of the Supreme Court assemble and pronounce a unanimous judgment without dissent. The promise of such a holding becomes more critical when it concerns the liberty of individuals and an attempt to correct an imbalance of power which exists against them. This is why the right to privacy judgment was celebrated last year. It signified hope that things could get better, that values of freedom, autonomy and dignity would be realised. However, the Srikrishna Report shows that the danger to a high constitutional principle may more often be that it is disregarded, rather than that it is disobeyed. By re-framing and re-interpreting the right to privacy, the report entrenches the positions of the two entities which already wield the most power over ordinary Indians: corporations and the government. As time passes, we will have many opportunities to look back to the day when the Supreme Court declared the fundamental right to privacy. When we do, we should feel relief rather than regret.

A fundamental error

At upwards of four million, the number of those excluded from the second draft of the National Register of Citizens published on Monday has sparked great anxiety about the legal status of so many individuals. As with the first list published on December 31, 2017, the publication of the final draft before the Supreme Court-mandated and monitored exercise moves to the next phase of claims and objections wasn’t accompanied by major turbulence. And this despite lingering doubts over whether the process was indeed foolproof, or even warranted. Causes for concern have been aplenty, from the frenetic pace to meet deadlines in the face of an unrelenting apex court to the omission in July of 1,50,000 names from the 19 million that had made it to the first draft. Monday’s list again had its share of notable omissions, including serving and former legislators. Given such a gargantuan exercise, it is to the credit of the NRC bureaucracy and its 55,000-odd workforce that timelines have been adhered to. But even a skilfully devised system of digitised mapping of family trees is subject to human interface, subjective bias, and the inherent flaws in the NRC of 1951 and the electoral rolls of 1961 and 1971 that make up the core of the ‘legacy data’.

The state owes it to those now left out, a staggering 40,07,707 persons, to ensure that their claim to citizenship is exhausted in its procedural entirety. But it also has a larger responsibility — to ensure that people who have lived here a long time, or those who know no other home, are not left high and dry in any eventuality. On that front, the Central and State governments must step up their assurances that there is no need for panic. While the modalities of a standard operating procedure for claims and objections are being worked out, to be placed before the Supreme Court by mid-August, the window for contestation could be extended by a month beyond September 28. The Union Home Ministry has also tweaked rules to enable applicants to move the Foreigners’ Tribunal, where earlier only the state could haul up a suspected alien before it. Bigger challenges lie ahead, especially after the final NRC list determines the precise number of deemed illegal immigrants; the state then has to grapple with what to do next. How India addresses the fate of those eventually left off the list will ascertain whether its democracy can lay claim to being humane or not. It is one thing to detain and deport illegal immigrants instantly when they cross the border. But when people have been allowed (or they have managed) to be in India for so long, when they have built their lives and become part of local economies and communities, they cannot and must not be rendered state-less on the basis of a list.


1) Reminisce

Meaning: Indulge in enjoyable recollection of past events.

Example: “They reminisced about their summers abroad”

Synonyms: Recall, Recollect  

2) Nostalgia

Meaning: A sentimental longing or wistful affection for a period in the past.

Example: “I was overcome with acute nostalgia for my days at university”

Synonyms: Remembrance, Recollection  

3) Unanimous

Meaning: (Of an opinion, decision, or vote) held or carried by everyone involved.

Example: “This requires the unanimous approval of all member states”

Synonyms: Uniform, Consistent  

4) Ambit

Meaning: The scope, extent, or bounds of something.

Example: “A full discussion of this complex issue was beyond the ambit of one book”

5) Provocative

Meaning: Causing anger or another strong reaction, especially deliberately.

Example: “A provocative article”

Synonyms: Annoying, Irritating  

Antonyms: Soothing, Calming

6) Primacy

Meaning: The fact of being pre-eminent or most important.

Example: “London’s primacy as a financial centre”

Synonyms: Priority, Precedence  

7) Amorphous

Meaning: Without a clearly defined shape or form.

Example: “An amorphous, characterless conurbation”

Synonyms: Shapeless, Unformed  

Antonyms: Shaped, Definite

8) Notions

Meaning: A conception of or belief about something.

Example: “Children have different notions about the roles of their parents”

Synonyms: Idea, Belief  

9) Pecking order

Meaning: An informal social system in which some people or groups know they are more or less important than others.

Example: “There’s a clearly established pecking order in this office”  

10) Tremendous

Meaning: Very great in amount, scale, or intensity.

Example: “Penny put in a tremendous amount of time”

Synonyms: Huge, Enormous  

Antonyms: Tiny, Slight

11) Agenda

Meaning: A plan of things to be done or problems to be addressed.

Example: “He vowed to put jobs at the top of his agenda”

Synonyms: Schedule, Programme  

12) Reconciles

Meaning: To find a way in which two situations or beliefs that are opposed to each other can agree and exist together.

Example: “It’s difficult to reconcile such different points of view”

13) Jargon

Meaning: Special words or expressions used by a profession or group that are difficult for others to understand.

Example: “Legal jargon”

Synonyms: Cant, Argot  

14) Planks

Meaning: A fundamental point of a political or other programme.

Example: “The central plank of the bill is the curb on industrial polluters”

15) Prone

Meaning: Likely or liable to suffer from, do, or experience something unpleasant or regrettable.

Example: “Farmed fish are prone to disease”

Synonyms: Susceptible, Liable  

Antonyms: Resistant, Vulnerable

16) Pursuit

Meaning: An activity that you spend time doing, usually when you are not working.

Example: “I enjoy outdoor pursuits, like hiking and riding”

17) Rigorous

Meaning: Extremely thorough and careful.

Example: “The rigorous testing of consumer products”

Synonyms: Meticulous, Punctilious  

Antonyms: Slapdash

18) Inroads

Meaning: An instance of something being encroached on or reduced by something else.

Example: “The firm is beginning to make inroads into the UK market”

19) Premise

Meaning: A previous statement or proposition from which another is inferred or follows as a conclusion.

Example: “If the premise is true, then the conclusion must be true”

20) Upends

Meaning: Set or turn (something) on its end or upside down.

Example: “She upended a can of soup over the portions”

21) Consensus

Meaning: A general agreement.

Example: “There is a growing consensus that the current regime has failed”

Synonyms: Agreement, Harmony

Antonyms: Disagreement

22) Incursions

Meaning: An invasion or attack, especially a sudden or brief one.

Example: “Incursions into enemy territory”

Synonyms: Attack on, Assault on

Antonyms: Retreat

23) Repository

Meaning: A person or thing regarded as a store of information or in which a particular quality may be found.

Example: “His mind was a rich repository of the past”

Synonyms:  Store, Depository

24) Grasps

Meaning: Take (an opportunity) eagerly.

Example: “Many companies grasped the opportunity to expand”

Synonyms: Seize, Snatch  

Antonyms: Miss, Overlook

25) Deontological

Meaning: Relating to deontology.

Example: “Deontological principles of ethics”

26) Inscrutable

Meaning: Impossible to understand or interpret.

Example: “Guy looked blankly inscrutable”

Synonyms: Enigmatic, Unreadable  

Antonyms: Expressive, Transparent

27) Convoluted

Meaning: (Especially of an argument, story, or sentence) extremely complex and difficult to follow.

Example: “The film is let down by a convoluted plot in which nothing really happens”

Synonyms: Complicated, Complex

Antonyms: Simple, Straightforward

28) Stark

Meaning: Severe or bare in appearance or outline.

Example: “The ridge formed a stark silhouette against the sky”

Synonyms: Crisp, Distinct  

Antonyms: Fuzzy, Pleasant

29) Concern

Meaning: Make (someone) anxious or worried.

Example: “The roof of the barn concerns me because eventually it will fall in”

Synonyms: Worry, Disturb  

30) Patently

Meaning: Clearly; without doubt.

Example: “These claims were patently false”

31) Alienates

Meaning: Make (someone) feel isolated or estranged.

Example: “An urban environment which would alienate its inhabitants”

Synonyms: Estrange, Isolate  

Antonyms: Unite

32) Dissent

Meaning: The holding or expression of opinions at variance with those commonly or officially held.

Example: “There was no dissent from this view”

Synonyms: Disagreement, Dispute  

Antonyms: Agreement, Acceptance

33) Entrenches

Meaning: Establish (an attitude, habit, or belief) so firmly that change is very difficult or unlikely.

Example: “Ageism is entrenched in our society”

Synonyms: Establish, Settle  

Antonyms: Dislodge, Superficial

34) Wield

Meaning: Have and be able to use (power or influence).

Example: “Faction leaders wielded enormous influence within the party”

Synonyms: Exercise, Exert  

35) Foolproof

Meaning: Incapable of going wrong or being misused.

Example: “A foolproof security system”

Synonyms: Infallible, Unfailing  

Antonyms: Flawed

36) Frenetic

Meaning: Fast and energetic in a rather wild and uncontrolled way.

Example: “A frenetic pace of activity”

Synonyms: Frantic, Hectic  

Antonyms: Calm

37) Gargantuan

Meaning: Enormous.

Example: “A gargantuan appetite”

Synonyms: Enormous, Massive  

Antonyms: Tiny

38) Tweaked

Meaning: Twist or pull (something) sharply.

Example: “He tweaked the boy’s ear”

Synonyms: Twist, Pinch  

39) Haul up

Meaning: To force someone to go somewhere or see someone in order to be punished or to answer questions about their behaviour.

Example: “He was hauled up in court/in front of a judge”  

40) Grapple

Meaning: Struggle to deal with or overcome (a difficulty or challenge).

Example: “Other towns are still grappling with the problem”

Synonyms: Tackle, Confront  

Antonyms: Avoid


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