We the People versus They the State: Our rights matter

In recent times, a synthetic tension has been inserted between the need for economic growth and the need to foster or protect individual liberties; it is an artifice that has conferred greater primacy to the state and private-sector firms over individual rights. The state has used almost every opportunity to appropriate superior rights under the pretext of national security or economic imperatives. Economist and political philosopher Friedrich Hayek may have foreseen such an eventuality when he had stated that “emergencies" have always been the pretext for eroding safeguards of individual liberty. The Supreme Court’s electoral bonds judgement provides the country an opportunity, and a legal precedent, for correcting multiple anomalies in society.

For example, the inconsiderate demand on individuals to provide know-your-customer (KYC) documentation afresh, multiple times, to every service provider in the economy—banks, telecom firms, insurance companies, mutual funds, stockbroking outfits, broadband vendors, high-end retailers and, bizarrely, airline loyalty programmes—for every insignificant transaction, without any corresponding obligation on corporates to safeguard these records, has led to several breaches of privacy and scams in which people have lost money. It may have been a growing drumbeat of consumer disaffection that compelled finance minister Nirmala Sitharaman to recently ask the Financial Stability and Development Council (an inter-regulator coordination body for the financial sector) to prescribe uniform KYC norms and allow for inter-usability of KYC records.

The ability to put undue pressure on individuals—using the threat of withholding service unless provided with copies of KYC records—perhaps emanates from the corporate sector’s inherent advantage in the legal process, which is structurally loaded against individuals. Any legal challenge to an errant corporate service provider entails a lengthy judicial process with attendant costs, which automatically dissuade a large number of individual appellants. Hopefully, the Supreme Court will follow up its electoral bonds judgement with an earlier promise made by Chief Justice of India D.Y. Chandrachud to work for the common people, especially on judicial reforms.

The corporate sector’s legal privileges and entitlements work in different ways. Individuals renting premises to corporate entities face immense difficulties, including protracted legal proceedings, while trying to repossess their properties. The inequity finds expression even in the relationship between a corporate employer and an employee. Employment contracts are usually one-sided, with little or no legal recourse available to employees. A good example is the forced gardening leave imposed on employees quitting their jobs, with the company’s apprehensions of the executive joining the competition accorded greater importance than the individual’s right to employment or livelihood.

The state has also been an active party in the devaluation of individual rights. Individuals gained a hard-won victory against the state when the Right to Information (RTI) Act was legislated in 2005, empowering citizens to seek information from the government. However, the state has since pushed back by first creating a capacity problem (by slowing down appointment of information commissioners); it then introduced amendments to the Act that downgraded the information commissioner’s post and empowered the government to fix their salaries; and, finally, by enacting the Digital Data Protection Act, it completely diluted the RTI Act. Ironically, while the 2023 law attempts to provide limited protection to the privacy of personal data under the banner of individual rights, it ends up defanging a person’s right to information, something that became the bedrock for the recent judgment.

The Indian citizen’s individual rights are enshrined in the Constitution, especially in Articles 19 and 21. But, unfortunately, India’s fit-for-purpose Constitution has not been able to scrub the vestiges of colonial inequities that have got entrenched across various Articles and Sections. Clauses permitting preventive detention constitute a glaring contravention of basic democratic values and civil liberties that has been carried forward from a colonial regime to a modern-day republic. What is even more tragic is that this perfidy has found favour with every political party since Independence.

Some of the skews can be corrected by the executive, and some by the judiciary. But these moves will shift the needle only marginally. A systemic correction will require nothing short of a mass movement.