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The Supreme Court and our Right to Privacy

Professor of Financial Economics and Part-time Value Investor, Transfin.
Aug 13, 2017 4:30 AM 3 min read
Editorial

The Supreme Court and our Right to Privacy

In his seminal work Nineteen Eighty-Four, author George Orwell conjures the dystopian super-state of Oceania where the Government, embodied by Big Brother, unleashes mass surveillance to oppress and control its citizens. This imagery was used by petitioners to dramatic effect in the ongoing Supreme Court (SC) debate on whether Privacy can be considered one of the Fundamental Rights. This call-to-arms stems from objections against Government of India’s ongoing drive to link key citizen data (biometrics, taxes, investments etc.) to Aadhaar, an already de facto mandatory document of identify. The plaintiffs argue a Fundamental Right to Privacy would protect Indians if authorities mis-use this centralised repository to track and suppress dissent.

 

The absence of a stand-alone constitutional statute makes Right to Privacy’s current validity unclear and subject to a case-by-case interpretation. Such ambiguity begets real consequences in case of a breach.

 

The Centre for Internet and Society (CIS), a non-profit research house focused on policies around digital technologies, estimate c.13.5 cr Aadhaar numbers and critical linked data can be downloaded from government websites. Violations are not limited to the public sector. Data breaches by private companies are common, ranging from leakage of Electronic Medical Records due to insufficient security provisions to proactive sale of customer mobile numbers by telecom companies. What avenues are open to a citizen to seek redressal? What is the legal basis for any retribution?

 

These foundational questions no wonder pushes the nine-member bench in a corner. The first step naturally would be to create a framework to perceive the letter and the spirit of Privacy. The favoured approach so far has been to look at a three-tier structure concerning the “intimate”, the “private”, and “public” spheres of one’s existence, with differential degrees of enforced stringency. This complexity aside, Privacy is its essence is the right to “left alone” and control what information can be collected and what can be shared. It the proverbial social contract between the individual, society, and state, enshrining non-interference.

 

The Government has set in motion a draft data protection bill to codify how data is to be collected, stored, and used. Though a step in the right direction, it will nevertheless be a piecemeal measure which ignores the need for wider safeguards against exceptions which are bound to creep in the name of “public safety” and “national security”.

 

It is worth emphasizing that explicit articulation of Privacy as a Right is new even in the West. Though not precisely mentioned in the US Constitution, it is protected by the Fourth Amendment. Moreover, a strong tradition of Privacy torts in American courts acts as a natural deterrent. The Data Protection Directive of the European Union (EU) provides similar controls, but additionally the EU has a ‘Right to be Forgotten’ enables consensual deletion of digital footprints. In Canada, a dedicated Privacy Commissioner ensures oversight and implementation of various Privacy regulations while in Australia, the Privacy Act (1988) provides guidelines for the regulation and use of personal data.

 

As India aspires to graduate towards a first world existence, these precedents should ideally set its societal tone, if not in body, then in spirit. The Supreme Court's judgement is bound to be layered and multi-dimensional, but a libertarian view insulated from the pulls of confrontational politics would be most welcome!