Constitutional Ethics & the Machiavellian Trap in India: the Privacy Example
We must understand that when you become a part of political narratives, you lose the very essence of your individual identity. This is something I propose through this article, as the age-old Machiavellian trap.
Users on social media portals have a probability of expressionism, ie, they can represent and talk about anything in 100 to million different times, which is possible due to the free choice principle. Free choice is the essence of democracy and it must exist despite ideological obscuration. However, India must Indianize its space of free choice and find its virtues to fertilize the privacy politics and jurisprudence of its own, in order to protect the idea of free speech.
Gautam Bhatia, one of the prolific Supreme Court lawyers remains vocal on privacy and expressionism, and even regularly in his columns in various outlets about the constitutional question of privacy. If we take the mandate of the Puttaswamy (2017) and Puttaswamy (2018), then on paper and principles, it seems a completely perfect picture of constitutionalism and democratic liberalism.
Although Justice DY Chandrachud's portion on Privacy as a heterogeneous and absolute fundamental right under the Indian Constitution is the milestone moment of India's Common Law approach to privacy, the judgements are a less Indianized but objectively utopian version of what privacy should be.
Now - I refute the Privacy myth shared by the verdicts by Justice DY Chandrachud and reject the voluntary-mandatory theory on Aadhar as discussed by Gautam Bhatia because there are some reasonable grounds to be noted.
My arguments are not based on what the law is currently, but on the ideology and jurisprudential structure of the law which is to be upheld:
- The 3-tier privacy interference (criminally it can be infringement) test by Puttaswamy (2017) works in some idealist dimension, and reiterates the Constitution of India's commitment of an affirmative that constitutional morality is scalar and rigid: it cannot be stained and it cannot be touched.
This, however, when is put into practice will have socio-anthropological issues, which proves that the idealist and rigid approach of the 3-tier Privacy test by Chandrachud, J is flawed as in applied law. It can, according to a moralist understanding of legal scholars and jurists, be made complex by eyeing transparency upon transparency, based on nested scepticism upon systems and their nested infrastructure. This is why two of the evolved ideas of privacy - (1) Differential Privacy and (2) Federated Learning, which are interrelated fail at technical levels.
- The moralist and formalist views of adhering rule of law are not ignored, and that is good on paper and in some constituents of applied law. However, imagery made that the moral yardstick of constitutional morality if is just limited to the idea of a moral guiding force, for sure therefore makes me conclude to these points - (a) that either the system is so weak that it has not evolved to handle ideological questions and the pool of different social, economic and political ideologies that posit the idea of fundamental rights in their own manner, or (b) or that is the system itself has fallen prey to a set of ideologies which have made the scope of law too conservative. In most liberal democracies, where free choice is dynamic, case (b) works and systems fall prey to judgementalism.
- Anyways, the law, which has to evolve with time requires effective political exercise to retain its moral capital, or the law will face disobedience of any sort, which may or may not be seditious. Therefore, for India, it is the need of the hour that we stop the Europeanization of our anthropological problems related to the purpose and efficacy of law. Of course, we cannot let the state act Draconian, but it would be a folly to lay down referential criticism of state actions from the lot of political historicity that Europe has provided - Aquinas, Machiavelli, Rousseau, Hobbes and Locke.
- India has directed the world in many different and beautiful ways, which no conventional legal jurist even intends to read about because they think that only European philosophy on political legitimacy and constitutional sanctity is enough. Well, despite the United States' utter economic and legal disparities due to immense corruption and it failing the status of true democracy, still - the US legal semantics is inspiring, and yet more liberal in comparison to the British cliche - which is conceded anyways. They developed constitutional morality in their own manner and procured its own political rubric, thus making the US a libertarian state. However, I must admit that the US failed to combat the problem of judgementalism that Europe suffered during the 1900s and 1920s - where the difference of ideas and identities are equated to divisions. Even if the law does not assume differences as divisions, the juridical activities which nourish and uphold the rule of law have blatantly failed to stop this equation.
Anyways, leaving semantics for good - let us now understand how at least at the level of jurisprudence, we can reform the idea of privacy. Here are some suggestions I would like to provide:
Assume that despite the best operations are implemented in the legal machinery, there will be failures and it could be a Machiavellian moment. However, the political brain that must reform the law for good, should never ever be driven by mass humanism or collectivism, because when masses feel left out, they shout out for direct democracy.
Obvious it is that direct democracy doesn't exist that way, so they will garner and manipulate the political wisdom of the law and policymakers, via any means - and then will convert the shared idea of morality a conservative and idolatry quantity, which will drive their own ideology - leading to the loss of proper wisdom.
If the manipulation was done is anti-elite and bulldozing, it is something we call populism. However, making morality conservative means that their ethics of reasoning that posits what their moral ground is will be conservative. It may or may not have political dimensions, so do not mix it.
Populism will exist because mass humanism or collectivism causes that. People manipulate the need of proper wisdom in the name of common wisdom and systems may cultivate some ideological obscurities. However, seeing this in a limited way and acknowledging it as it is supposed be is not the liberal way of seeing the problem. My view is that this is quite much of a biased and mob-way of dealing with the problem.
And I tell you how this view is indeed conservative: so when you feel that populism is affecting our policy decisions, you must understand that you are falling in prey of the same Machiavelli trap because instead of reforming the law by understanding the anthropomorphic issues of the society - you are imposing your ideological obscuration by adopting the moralist and formalist view of maintaining the rule of law. You must know that legal reforms and changes must be evolutionary, and less revolutionary because the former sustains better. However, if you think that merely idolizing a conservative institute of constitutional morality will save you, then it would never happen. I bet the upcoming Sabarimala decision will prove this to all of you because the question is more related to legal pluralism and the role of juristic personalities and not legal personalities. The Ram Janmabhoomi case is also one of the same in the league, believe it or not.
In a similar way, for any polity that after facing some failures cannot go back to square 1, has to go to square 100. This is the neoliberal approach which we must adopt. This is the reason the idea of European Union is compelling and different from the socialist Soviet Union. Europe knows when it will fail, but unlike the 1920s and 1940s, it will become practical. So assuming that populism is coming - which I remind you is the Machiavellian moment, does not signify that you will follow the mob-way either.
Make the ethical side of your political decisions stronger, so as to control mass humanism, because, in a constitutional democracy, you can and never ever should believe in unlimited powers of entities that do not assume democratic liberalism. Period.
Now fixing the Privacy problem is only possible through the anthropomorphic way: stop idolizing the 3-tier test, avoid the top-to-bottom approach and strengthen the branches within the executive. The Judiciary as in general never has to intervene in the ecosystem of ideologies, will never have to intervene, and will never do - but in the end they will also be free enough to balance and respect ideological pluralism to avoid the monopoly of some ideologies and decimate the black hole of ideological obscurantism. Period.
Also, you have to avoid the obscurity theory of privacy and understand that in the case of disruptive technologies - the technology must act stronger and become a part of the society in a more indigenous and plural perspective. This also means we will never have to interpret privacy as a legal idea within 2 mainstream ideologies: (a) the neoliberal market approach; and (b) the moralist and formalist approach.
Also, the skeletal interpretation of privacy jurisprudence must be based on the principles of democratic liberalism and moderate formalism, where logic and reason prevail. Subsequent to this, it would be wider and smarter to suggest that the muscular interpretation of privacy jurisprudence - where you transit from pure law to applied law, contains the practicable, observable and welcomed notions of cultural pluralism, in order to cause a legal form of enculturation of mass diversity, in many areas. Period. This will stop the interpersonal malfunctioning of idea correlation and will calm down mass humanism or collectivism to avoid further redemptions due to cognitive dissonance.
It therefore will be able to create an autonomous system of constitutional ethics to avoid falling prey to the Machiavellian Trap and the dialectic regimentation of mass diversity and cultural pluralism. I believe this - is the real and evolved way of achieving what Immanuel Kant wanted - a treaty that prevents future and present wars. However, I would prefer to propose that we must revisit ourselves and go beyond the Kantian estimate of republican constitutionalism. The world is big and we must never assume that systems just end and terminate - we must save them and improve them. Let's hope such a thing happens.