CO­NUN­DRUM OVER RIGHT TO PRI­VACY

The Supreme Court judg­ment on the right to pri­vacy will have far-reach­ing reper­cus­sions. It will de­cide whether an in­di­vid­ual’s right is larger than that of the State

Gfiles - - FRONT PAGE - 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 nine­mem­ber 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,

The gov­ern­ment states that right to pri­vacy 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”

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 mecha- nism 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 nine­mem­ber 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

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

abor­tion. In 1990, the Supreme Court al­lowed in­di­vid­u­als to ter­mi­nate life­pro­long­ing 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!

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