BY ALAM SRINIVAS
PRIVACY invades almost aspect of our lives. Sadly, slowly but surely, privacy is vanishing out of our lives. You switch on the phone, and the mobile service provider can track your location and movement. You send a text on WhatsApp, change your status on Facebook, and they can track your likes and dislikes, habits and preferences. Your safety and sexual orientation, to a large extent, depends on your ability to invoke and enforce your right to privacy. Other people cannot dictate what you wear, what ideology you hold, and what you eat and drink.
In most ways, privacy is the individual’s right to make a choice. In theory, and in an ideal situation, it should encompass every choice, be it related to family, gender identity, and surveillance. This is why the nine-member constitutional bench of the Supreme Court, which decide on the right to privacy, asked in “what areas” will this choice extend to. Hence, a definition of this right, and its specifics, become crucial. The idea about such a right is so “amorphous” that we need to know “its content”, “its contours”, and the obligations that the State has to protect them.
But the moment one defines privacy, one will obviously restrict it. The moment one says that it extends to specific areas, and no more, the definition will be contested there and then, and for decades after that. This is why the bench, headed by Chief Justice JS Khehar, in such an attempt may cause more harm than good. It will set in a never-ending momentum that will impact several other laws, acts and rules of the country. In fact, whatever the apex court decides in this case, there will be far-reaching and sweeping effect on several issues being debated today.
For example, take the case of Section 377, which deals with “carnal intercourse against the order of nature with any man, woman or animal”, and deems such acts to be punishable. In 2012, the Delhi High Court struck down this section, and privacy was one of the grounds it considered. A year later, the Supreme Court overturned the lower court’s order. Therefore, if the apex court now admits that privacy is expansive its ruling on Section 377 “falls”. This was noted by Justice DY Chandrachud, who is one of the nine members of the constitutional bench.
IT will impact the decisions of both the government and private businesses. A wholesome definition of privacy will derail the ruling regime’s grand plan to link biometrics, i.e. Aadhaar, with several things like tax returns, bank accounts, mobile services, real estate, and subsidies. Similarly, it can stop the decision taken by WhatsApp to share the data of its users with its parent, Facebook. In this digital age, it will empower the individuals, who are active on social media. It will limit the extent of surveillance, and the emergence of a ‘Big Brother’, who watches us each minute.
Whether privacy is overriding or limited will depend on whether the apex court deems it to be a fundamental right. In the past, two Supreme Court rulings decided that the right to privacy wasn’t a fundamental right. The 1954 order related to the search and seizure of documents by the police. A majority ruling said that the action amounted to “temporary interference for which statutory recognition (of the right to privacy) was unnecessary”. In the 1962 judgment, which related to State’s surveillance, it felt that privacy wasn’t a “guaranteed constitutional right”.
Today, both ‘for and against’ arguments on the issue are nuanced, layered and multi-faceted. This is especially true in this age of technology, in which most of us live a part-public life. The government, for instance, states that it is not mentioned in the Constitution, unlike the other fundamental rights. The critics contend that it is a “pre-existing natural right”. The logic goes that “between liberty and privacy, there is a step of dignity. Dignity flows from liberty and privacy from dignity”. And then, as Justice Chandrachud hinted, dignity may extend to an individual’s identity.
However, during the presentation of the Aadhaar Bill in Parliament, the government said that privacy was “probably a fundamental right” and “part of individual liberty”. Still, its lawyers insist that even if one makes this assumption, and forget the word “probably” in the statement, the multi-faceted nature of privacy limits its fundamentality. KK Venugopal, a lawyer told the nine-member bench, “Every facet (of it) can’t be ipso facto considered a fundamental right.” This is especially true in the case of, what is called, “informational privacy”.
The counter-logic is simple. The fundamental rights as per Article 14 (equality before law), 19 (right to freedom) and 21 (right to life and personal liberty) are exercised through liberty and freedom of choice. If this is true, then there are no doubts about the right to privacy, which is intertwined with both the latter concepts. This was the underlying judicial philosophy of the apex court when it interpreted that the freedom of the press flowed from Article 19. The same legal and constitutional reasoning has to be applied to the issue of privacy.
FOR the government, the debate is critical for economic reasons. It needs a form of an identity system to tackle corruption and ring in transparency in several areas such as welfare schemes, distribution of subsidies, and evasion and avoidance of taxes. In the same vein, such a mechanism is important in security-related areas and to tackle terrorism. Thus, there is a need to tie-up a single identity system, like Aadhaar, with PAN, mobile services, and bank accounts. This will enable the government to pinpoint black money and terror funds, as well as the offenders.
As the government told the nine-member bench, even the World Bank has said that an identity system should be followed by every developing country. In such nations, the right to privacy is not a fundamental right, but a “qualified” one, which is “secondary” to the right to life in case there is a conflict between the two rights. In a developing country, which has hundreds of millions below the poverty line, ‘life’ is more important than privacy. Hence, the thinking and mindset that’s enmeshed in developed societies like the US cannot be applied in India.
Ironically, the US Constitution does not have an “express right to privacy”. However, it does protect certain specific aspects of privacy such as “privacy of beliefs (1st Amendment), privacy of the home… (3rd Amendment), privacy of the person and possessions… (4th Amendment)… (and) privilege against self-incrimination (5th Amendment)”. The 9th Amendment, according to some experts, protects privacy “in ways not specifically provided in the first eight amendments”. But fortunately, the American Supreme Court and other courts interpreted privacy in its absoluteness.
For example, in 1923, the court negated a law that prohibited the teaching of foreign languages to school children. In 1965, it protected the right to have children, when it struck down a law that prohibited the usage of contraceptives. In 1972, a court protected the woman’s right to have abortion. In 1990, the Supreme Court allowed individuals to terminate life-prolonging medical treatments with some state-imposed restrictions. In 2003, it said that the Texas’ law to prohibit homosexual sodomy violated the liberty of gay men.
Privacy has become complex in the digitised world. As the nine-member bench of the Indian apex court asked, “When one can share personal data with private players like Apple, why not share it with the government? What’s the difference?” This is indeed the most critical question. One, the individual should have the power to decide what she wants to share, and with whom. It cannot be mandatorily imposed on her, especially by the State. If one wants to exit WhatsApp, one can. But can one opt out of Aadhaar if it is linked to bank accounts and PAN?
Two, the private players can individually ask their users to share personal data. The problem arises when the former wish to share the same data with each other. This is the essence of the ongoing case against WhatsApp, which decided to do so with Facebook. Once the government ties Aadhaar with the various services, it may or may not share the data. That’s the grey area because the individual has no choice. She has to go with the State’s decision, irrespective of her choice.
FINALLY, there’s the fear of how the State can use the data to act as the Big Brother, and monitor each and every decision taken by an individual. For example, consider this scenario. Your biometrics is linked to your mobile. Now, the State can know where you are, where you are going, and who you talking to. The biometrics is then linked to your debit and credit card. Now, the State knows what you buy, where, and when, and for how much. If the former is linked to your bank account, the State knows how much money you have, and where it comes from.
Now, the State has a huge set of, what’s called, metadata about you and 1.3 billion people. It can easily connect the dots, even if the connections are wrong and tenuous. If person A and B are in the same area, have spoken to each other regularly in the past, and one of them has purchased a gun in the past few months, the metadata can connect both to a firing incident in the same locality. Arrests can be made, and the onus will be on the individuals to prove that they are innocent. You can be deemed to be a terrorist. You can be jailed until you get a bail.
This is the real danger to the citizen. This is the real danger to her privacy. This is why the interpretation of the right to privacy is important. The limitations to the right have a strong force of logic behind it. But the absoluteness too cannot be negated. Over to the Supreme Court!
GOVERNANCE / privacy / debate
VOL. 11 | ISSUE 5 | AUGUST 2017