Privacy in the age of publicity

The Union government has taken a stand in the Supreme Court that privacy is indeed a fundamental right, but a “wholly qualified one.” Arguing before a 9-judge Constitutional Bench, it contended that not every aspect of the right to privacy is a fundamental right and it depends on a case-to-case basis.

The UIDAI (Unique Identification Authority of India) which is implementing Aadhaar informed the Court that the government had constituted a committee of experts headed by a former Supreme Court judge to draft a Data Protection Bill.

Consequently, the pressure of arguments to establish privacy as unrestricted fundamental right, which if acceded, would jeopardise the Aadhaar project which is in full swing. The Bench is presently examining the question of privacy on a referral from a 5-judge Bench hearing the Aadhaar case.

Importantly, privacy or the “right to be left alone” is classified as only a common law right which can be subjected to State intervention. Predictably, the government finds itself in a mess vis-à-vis handling the legal issue of the right to privacy arising from the use of Aadhaar card as identity.

It is practically pushed to emerge unblemished out of its own contradictory stand on the question and rectify the situation in such a way as to preserve individual rights and carry on with Aadhaar.

The Apex Court and the Government are faced with a conflicting situation regarding the limits of the right to privacy about democratic liberties, the incredible growth of data generation and dissemination techniques and consequent blurring of lines between private and public spheres.

Remember, the Aadhaar case arose out of a petition filed by a group of students alleging that a contract entered into between Facebook and instant messaging WhatsApp in 2016 was a violation of the citizen’s right to privacy as the data exchanged included personal information.

The government argued that any infringement of personal data would amount to infringement on right to life which is a fundamental right. This right is now being considered further by the Constitution Bench to fix limits of the right to privacy and the power of State intervention. This is urgent as Aadhaar is being used as proof of identity for various purposes.

Notably, Aadhaar contains vital personal details like date of birth, sex, address, finger prints, iris scan, photo etc to provide complete identity of a person. Bio-metric or physiological characteristics collected for it are unique to individuals and reliable for identity and hence raise concerns about their ultimate use and storage security.

Moreover, the Aadhaar project has drawn assistance of private contractors and gone on without specific consent of citizens who have furnished personal data sans even knowledge of its possible uses and misuses.

The right to privacy was first recognised in the US in 1890 by Warren and Brandies who described it as “the right to be left alone – the most comprehensive and the most valued by civilized men.” It has always defied strict legal definition. In many countries, the concept has been fused with data protection in which privacy is interpreted in terms of management of personal information.

The US Supreme Court first recognised the Constitutional right of privacy drawn from the Bill of Rights on protecting the security of home and person as well as freedom of association in 1965. The Court struck down a State law prohibiting the use of contraceptives by a married couple. However, right to privacy is not an enumerated right under the American Constitution. It remains an indirect right as invasion into privacy is made a “statutory wrong”.

When the Indian Constitution was written, the right to privacy was debated mainly as a right to protect personal liberty and to prevent unlawful search and seizure in the chapter on Fundamental Rights. In 1954, the Supreme Court confirmed that the right to privacy is not recognised in the Constitution as a Fundamental Right.

However, in 1962 the Apex Court unanimously ruled that the right to privacy was integral to right to life and in 1994 put this right as part of personal liberty. This was reiterated in 1996 and further extended to the right to communication with an order that the said right could not be curtailed except according to the procedure established by law.

Certain guidelines were also laid down by the Court. Thus, no law has been passed and the term “privacy” has also remained undefined. Indeed, the right to privacy has never been strong in India in law or practice.

The Declaration of Human Rights (1948) which protects territorial and communications privacy and the International Covenant on Civil and Political Rights (1966) which specifically contains the right to privacy are often cited as proof of India’s adherence to the right to privacy. But, they are not effective defenders of this right though India is party to these international instruments.

Interestingly, collection and retention of bio-metric data are impermissible in UK and France. Threat to privacy posed by creation of massive centralized databases has led to shelving of Aadhaar-like programmes in these countries.

Arguably, privacy consciousness is rather low in India compared to western countries. Indian institutions like joint family, temple festivals, marriage celebrations and community life do not encourage privacy.

In such an environment the threat to privacy in Aadhaar has to be seen from the angle of threat to nation’s security, leakage of information to unfriendly countries and terrorist organizations, possible thefts and impersonation etc. These are real and dangerous and have to be guarded against much more than vague attachment to personal data.

By Dr S Saraswathi