Indian constitutionalism’s stress test in the digital age

The need to insulate from others, nonchalant as it may be, is as time-honoured as hunting.

- Ashish Bharadwaj and Insiyah Vahanvaty

We have yearned for the sense of clandestine enjoyment in harbouring secrets and rejoicing in solitude from the prying eyes of others. Eight decades ago, the “other” was the constabulary that could search and seize at will.In the constituent assembly in 1948, Ambedkar called privacy a “useful proposition which must be beyond the reach of the legislature”. The digital age is different. When law enforcement goes beyond the threshold of Bentham’s panopticon, retribution for expressing ideas becomes common.

Privacy, until recently, remained neglected by law and abandoned by governments. But, the indispensability of privacy to liberty and dignity, two unmistakable components of our Preamble, always shadowed omissions.

Without legislative safeguards, autonomy in speech and expression will be accompanied by censorship and conformity. It took our courts three decades after public use of the internet began in India to recognise privacy as a fundamental right.

Until the landmark NALSA judgment that recognised a “third gender”, the Supreme Court (in MP Sharma vs Satish Chandra, 1954 and Kharak Singh vs State of UP, 1963) constantly maintained that the Constitution does not recognise privacy as a fundamental right.