Talk Point: Did India wake up late to the idea of privacy? Can law help us put personal privacy first?

Aadhaar
Representational image. Source: @UIDAI

Most liberal democracies across the globe debated privacy at least half a century ago. Even as India was part of the United Nations Declaration of Human Rights and ratified the International Covenant on Civil and Political Rights, which recognise right to privacy, it has the distinction of being one of the last countries to have a privacy law.

Did India wake up late to the idea of privacy? Can law help us put personal privacy first? We ask experts.

Even if Indians put privacy on a lower pedestal, the state cannot shy away from protecting it – APURVA VISHWANATH, Special Correspondent, ThePrint

In the last 40 years, an unbroken chain of a dozen rulings of the apex court recognise the right to privacy. Only two in the 1950’s of larger bench strengths said the right does not exist and the debate now is just about setting the tone right, once for all.

The delay in setting the record straight has more to do with a mix of economic, socio-political factors than cultural.

Much of it can be attributed to how this government and the previous have redesigned our welfare system with Aadhaar. Our first robust attempt at data protection, the Information Technology Act came in 2000, just a few years after India opened up its markets to the world.

Indian society is generally collectivist and given our high population density, privacy might not be the greatest of concerns for a citizen but an elected government has a duty to protect the interests of its citizens which is why the Constitution confers powers upon the Parliament.

So, the government’s diffidence about this right is perplexing. The government argues that privacy is a Western import and cannot be adopted in India, which ranks low in the Individualism Index. But privacy is as Western to India as democracy is. Even if we assume a majority of India puts privacy on a lower pedestal, the state cannot shy away from protecting it.

India has always grappled with constitutional ideas, debating its rights in terms of ‘individual vs. community, autonomy vs. heteronomy, and identity vs. difference’. Many constitutional aspects in conflict with our cultural dispositions evolve every day, and so will privacy.

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The outcome of the Constitution Bench will have far reaching implications on the development of Digital India — Rajeev Chandrasekhar, MP, Rajya Sabha

I raised the issue of privacy in and outside Parliament repeatedly and approached the Supreme Court in early 2014. I also called for revoking Sec66A to protect digital Freedom of Expression.

Privacy is a crucial element in this basket of consumer rights for Digital Indians as our lives and businesses are transformed through technology. Consumers, media and civil society now realize that Aadhaar and other aspects of this new digital landscape represent risks as much as transformative power. There is a growing call to protect the individual.

Views range from the absolute purists who believe the state has no right to seek any information from an individual to those who believe that the state should not have any fetters on seeking and using individual data.

I subscribe to neither of these positions.

  1. a)     Privacy is a fundamental right under Article 21 – It is subject to reasonable restrictions and so it is NOT an absolute right.
  2. b)     Entities authorized by the state have the right to seek information from citizens for the stated cause.  Citizens have an obligation to provide such data.
  3. c)     Those State entities that collect, store and manage the volunteered data must have legal and constitutional obligation of using it only for the purpose specified. It implies that the giver of the data has the right of consent on the use of the data for any other purpose.
  4. d)     Such a Fundamental Right to Privacy also means, that, if the custodian of the user data (Private/State) misuses/leaks/fails to protect the data – such entities would be legally liable and in contravention of this right.

The outcome of the Constitution Bench will have far reaching implications on shaping the rights/protection of the individual and balanced development of Digital India.

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Privacy is a privilege for the ‘haves’ and a luxury for the ‘have nots – Osama Manzar, founding member, Digital Empowerment Foundation

Privacy, as a fundamental right in India, is at a crossroads of cultural practices and constitutional rights. With figures telling us that about half of India, that lives in rural India, is illiterate, it only explains that India is primarily and culturally an oral country. In an oral society, everything is not written down or documented or archived, but it is passed on from one person to another through conversations. In this society, there is little meaning of privacy. Only those words that are kept “secret” are “protected”.

The issue of “privacy” only arises when information is documented on paper, in video, in audio or any other medium. So, privacy is only a concern for those who believe, practice and are dependent on documented information and not oral knowledge. This is the reason, I believe privacy is a privilege for the haves and a luxury for the have nots. The poor would any day prefer entitlements at the cost of their privacy.

Having said that, since we are living in the world of documented information, it is critical to discuss privacy as a fundamental right.

In a country like India where the Right to Information Act gives power to individuals to seek information documented in government records, thus ensuring State’s accountability to its citizens, it is only natural to expect that a citizen has the right over his/her information as well.

Since the world is no more living in mono-medium (read oral-only), we understand that our lives are stored in various media, but we demand that our personal and private information be protected as a fundamental and constitutional right.

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Privacy isn’t just personal. Regulating the state’s use of our information has a societal value – Krittika Bharadwaj, Advocate

Modern data protection laws, with robust provisions for the collection, use and storage of personal information based on an individual’s consent began evolving in the 1980s. For a long time, these were restricted to Europe. In most Asian countries, such laws have come into existence only over the last fifteen years.

While it is true that India has dragged its feet on drafting a modern privacy statute for far too long now, I would hesitate to attribute this legal vacuum to any cultural predisposition. Our constitutional jurisprudence reflects a strong tradition of advancing individual rights. This is evident from the ever-expanding interpretation of Article 21 – the fundamental right that guarantees the right to life and personal liberty to every individual. Since the first authoritative decision on privacy in 1975, the Supreme Court has continued to expand the scope of this right to include aspects of decisional autonomy, freedom from state surveillance and even informational privacy. Pending cases on issues such as the right to be forgotten, sharing of personal data between corporations and the constitutionality of the Aadhaar project present further opportunities to develop this right in a meaningful manner.

That said, l would also be wary of characterising privacy as a purely individual concern. A privacy law may confer rights on individuals, but regulating how the state’s use of our information has an important societal value. It is an essential safeguard to ensure that our society retains its fundamental democratic character – where it is the state that remains transparent, instead of citizens being subjected to ubiquitous surveillance.

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It is inherently fallacious to presume you have a complete right over your body — Mukul Rohatgi, former AG

The concept of privacy was well known when India wrote itself a Constitution. Whatever the dimensions of privacy were at that time, our constitution makers consciously rejected including it as a fundamental right in 1950.

So, we had that debate and we decided against it.

Just a few years later, the Supreme Court, through eight judges debated the issue, and once again, rejected the argument that privacy is a fundamental right.

If by privacy, you mean liberty or the right to be free, that is already in the constitution. I feel the only aspects of privacy that the state should protect is that nobody enters into my bedroom, and nobody eavesdrops on my conversation with a friend unless they can legally do so.

In today’s digital world, beset by terrorism, seeking ‘the right to be forgotten’ would be non-compliance with the reasonable restrictions that the Constitution places upon our fundamental rights.

It is inherently fallacious to presume you have a complete right over your body. The state does not let you commit suicide or get an abortion beyond a stipulated period.

When I pass through the Supreme Court security check everyday, all my details appear on a screen for the personnel to see. We accept that because they have a legitimate interest in protecting my security. The state has a stake in its citizen’s lives.

There is a claim that collection of biometrics and not just data is a violation of privacy. Have you not given your biometrics to the state and private parties? You do when you get a passport or an iPhone.

A smart electorate that has chosen its government for 70 years now has decided to weigh benefits to the marginalised over privacy. That is 115 crore people versus a handful who claim privacy as a fundamental right.

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