The Attorney General during the course of his argument in the Aadhaar case stated that citizens do not have the absolute right to their bodies. Not satisfied with that, he has also said that you may say that you want to be forgotten but the state does not want to forget you. Taken together these would be easily among the most alarming words that have been spoken in an Indian court of law in recent times.
There are those who will see some nefarious designs of the present regime in this development, but that would be wrong. These words are a logical culmination of an ever-expanding state in which the citizens have been willing participants. There is a fundamental question that these statements require us to ask outside the context in which they have been spoken — whether or not Aadhaar should be linked to PAN cards and made compulsory for the taxpayer — which goes to the very essence of the self. What is the relation between the state and a citizen in our country?
Have we through the Constitution made a compact to give away our self to the intrusion of the state allegedly for our betterment — note “the state cannot forget you” — or have we given ourselves a Constitution, howsoever defaced and defiled, that is designed to both constitute us a nation and also protect us against the state?
To me the answer is simple. The people bring into being the Constitution and through it, the state, and they leave, and ought to leave, most of what they do outside the ambit of the state’s surveillance. We have increasingly become inured to the various ways in which the state is keen on keeping tabs on our lives. While the very logic of the state makes it an intrusive force and an expansionist organism, in our case, the laws that are still largely colonial remnants make it easy for the state to behave in such a manner and even to seek support from these laws.
Not surprisingly, the AG has tried to buttress his argument on the absolute right over bodies with a reference to the attempt to commit suicide law that still survives in the Macaulay-drafted Indian Penal Code. Section 309 of the Indian Penal Code treats the attempt to commit suicide as a crime. What is surprising is that Section 309, which is as patently a blue law (civil laws that provide sanctity to religious positions) as one is likely to find in the criminal code, has been used by the AG representing the present government, which in other circumstances ought to be willing to heed the 1971 Forty-Second Law Commission Report that adverts to the Manu Smriti as it recommends the deletion of Section 309. Incidentally, a bill was introduced in 1972 deleting this section, but the bill lapsed. If only this section was deemed unconstitutional by the Supreme Court in the Gian Singh case, the AG would not have taken recourse to this law to suggest that citizens do not have an absolute right to their bodies. No one should miss the delicious irony of the BJP government using a British-era blue law to support the state’s present designs of surveillance.
But what of the even more alarming notion that the state does not desire to forget you even if you as a citizen want to be left alone? Even if this is a case of rhetoric flourish in the courtroom, the very thought recalls the desire to enumerate, count, and then account for every citizen. All in the name of wanting to serve us, the citizens! But what if a citizen wants to be left alone? She does not desire the state’s help and intervention. She wants to be forgotten by the state for she has no great feeling of filiation. She may in the hoary traditions of this land even decide to renounce the world, which presumably would also include any interaction with the worldly potentate, the state. But our paternalistic government will have none of that. It will seek, find and be there for her.
There will be many who think of this as an imprecation of the present regime, but that is not so. This is the inexorable march of the state, whether it is Tweedledee or Tweedledum in power.
Appeared in First Post. Read here.
