Millennium Post

Right to Privacy is vague, legally

While hearing of petitions challenging the Constitutional validity of the Aadhaar scheme, the nine-Judge bench of the Supreme Court had observed that Right of Privacy is not necessarily coexistent with data protection. "Privacy is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens. The 'Right to Privacy' is in fact too 'amorphous' a term." The Apex Court bench, headed by Chief Justice J.S. Khehar examining a reference on the question whether privacy is sacred, fundamental and an inviolable right under the Constitution, said that to recognise privacy as a definite right, it had to first define it. But this would be nearly impossible as an element of privacy pervaded all the fundamental rights enshrined in the Constitution.

The Court sought to know why citizens were uneasy to share personal information with the State when they had no problem doing so with private players. "When someone uses an iPhone or iPad with fingerprint login, their personal details are already in the public realm… Is there something qualitatively different when the State does the same (seek personal information)," Justice D Y Chandrachud, one of the judges on the bench asked senior counsel Sajan Poovayya, who was appearing for the petitioners. The court also said that an attempt to define the Right to Privacy may cause more harm than good. "This was why even Europe had to bring in two separate conventions, one dealing with privacy and another with data protection. Whether we like it or not, we live in a world of big data and the state is entitled to regulate privacy. Privacy is not so absolute or overarching to prevent the state from legislating," Justice Chandrachud said. He also referred to instances of governments collecting data and using it to find out who may be likely to commit a crime. "While applying for a passport, can someone say they will not furnish the information asked for? Can someone who adopted a child be compelled to disclose the name of biological parents? Can we deny passport to a single mother if she does not want to disclose the name of the child's father," he said, asking to what extent one can assert privacy rights to suppress one's identity, adding, "There, artificial intelligence is applied to profile people and find out who is predisposed to crime. That is profiling.

However, if the government uses the data to disseminate economic benefits of its programmes, then it is not profiling. Data cannot be used to stigmatise an HIV positive person, but it can be used to provide health benefits." While opening the arguments for the petitioners, Senior advocate Gopal Subramanium submitted that everyone needs privacy as the right to liberty means the right to make personal choices, the right to develop one's personality, one's aura, one's thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe, Justice Rohinton Fali Nariman asked him: "Your argument is that the Constitutional Right to Privacy is much larger in dimension from the common law Right to Privacy, which is only confined to be left alone in my home, which is my castle?" on the other hand, Attorney General KK Venugopal had submitted in the court that right to privacy is merely a common law right and the Constitution makers "consciously avoided" making it a part of the fundamental rights. Arguments on the matter would continue on July 25 when Venugopal would speak for the government.
Nonetheless, among the many rights available to citizens of a democracy, privacy is a priceless one, though national security is presented as a reason it cannot be considered an absolute right. Of course, the internet has changed the rules of the game. Every interaction we have with a service provider creates a 'record' and there is a possibility of governments being able to access it without a warrant.
The politically contested space of the Internet has created new power relationships among citizens, companies and governments. Now, governments of all hues are learning to use technology to protect their interests. Now, the million-dollar question is: Without a 'Right to Privacy', can an individual in India be any different from those in the many 'People's Republics' and 'Democratic Republics' that are democracies only in name?

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