Divine right of kings or the Divine right theory is political doctrine in defence of monarchical absolutism that asserts that king authority and power are sacred and are derive from God. It is a medieval conception that originated in Europe to help raise the political ruler to a status that parallels of the spiritual power to the church. This gave all the kings actions a divine sanction or approval. As an offshoot of this principle, there three derivations: the king can do no wrong, everything moveable and immovable belongs to the king, the king has the right to take away the life of a citizen. These principles to a greater or lesser degree were incorporated into the social contract theory and other theories and are still active today. The Principle of Eminent Domain is one that allows the state to take away private property. The king was replaced by the State.
During the Emergency in 1970s, there was a case in the supreme court which now infamously known as the ‘ADM Jabalpur’ case. During the Emergency, rights guaranteed by the Constitution under Article 14 (right to equality before the law), Article 21 (protection of life and liberty) and Article 25 (protection against arrest and detention) were suspended. Thousands were detained without trial under Preventive Detention Laws and the Maintenance of Internal Security Act (MISA).
As people went missing, concerned family members and friends started seeking redressal at courts. One particular case reached the supreme court. Niren De, the then Attorney General, was representing the government’s side. The government’s position was that the right to move courts have been suspended, thus these cases must be dismissed. While talking about the citizen’s ‘liberty’ during times of emergency, one particular justice asked “Life is also mentioned in Article 21 and would Government argument extend to it also?”. The attorney general answered, ‘Even if life was taken away illegally, courts are helpless’. The philosophical orientation was that the state can do almost anything it deems required during times of emergency.
Something interesting happened last year. A landmark judgement was passed by the Supreme Court that held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. One of the opinion put forth by the judges was that “The right to personal liberty has no hallmark and therefore when the right is put in action it is impossible to identify whether the right is one given by the Constitution or is one which existed in the pre-Constitution era”. With this they upheld the right to privacy adding “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities.”
Why are these two cases important?
The first is about the understanding of life and the philosophical orientation of law. There is a rising field of study known as legal anthropology. Many sociologists such as Henry James Sumner Maine, Bronisław Malinowski have presented their research on societies. The basic orientation of their work is very different when compared to the universality theories which are in place. Upon studying the Trobriand Islanders and their traditions in the 19th and 20th century, Malinowski concluded that the way in which these states function was very different from those of the modern states. While traditional societies focus on preventing social deviations, modern societies punish deviations. This has a series of subsequent strains of debate that flow. Let us consider one case in point – land acquisition. According to some of laws that prevailed in ancient India through British India, right to property was placed very highly. Manu declared the tiller as the owner of the land. The Arthashastra also looks at protecting private property seriously. There have been numerous instances where judgements have been passed on similar lines in various courts in the late 1800s in India. Till 1978, right to property was a fundamental right. Via the 44th amendment in 1978, it was made a constitutional right. So when the government wants to acquire land, one part of the resistance is also cultural rather than only being economic.
The second implication is that of privacy in this new age. With the Facebook-Cambridge Analytica revelations and huge amounts of data being generated, issues surrounding privacy are very critical. Indian laws and system haven’t been updated for the digital age. The government constituted a committee last year popularly referred to as the Justice Srikrishna Committee on to “study various issues related to data protection” and “suggest a draft data protection bill”. The released a draft whitepaper towards the end of last year giving insights on their thought about the state-individual relationship as well as those of other intermediaries and concerned parties. Their report is likely to be released in the coming weeks.
Just as one is bound to wonder whose life is your life, there is a pressing question surrounding whose data is that data.
Picture Credits: Reuters