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Following the landmark judgement on Triple Talaq, on Thursday, August 24, India’s Supreme Court (SC) found itself on the right side of history yet again. A nine-member SC bench declared, once and for all, that the right to privacy is an intrinsic fundamental right under Article 21 of the Indian Constitution – protection of life and personal liberty.
While each judge came to the decision with their own interpretation and reasoning, as stated in the 547-page-long judgment – they overruled verdicts previously given in the 1958 MP Sharma case and the 1961 Kharak Singh case, both of which dictated that privacy is not a given under the Constitution as a right – the final consensus was unanimous, an uncommon occurrence more so for cases as big as this.
The bench, led by Chief Justice JS Khehar, comprised of Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer. While Aadhaar may have been at the core of this latest judgement, its effects go much further than that. At a time when Indians are in a state of fear about basic choices like what they eat, what they wear, and who they love, the passages offered by these judges in the pages of their verdict offer hope again. And without a doubt, there will be both good and bad effects on several aspects of our lives we may have not previously foreseen. Today, we try to understand notions of privacy in India and the implications of the now-fundamental right to it in our digital age.
I. Who were the people behind India’s fight for Privacy?
The original writ petition in the case for right was filed by Retired Karnataka High Court Judge KS Puttaswamy in 2012 in a stand against the government’s move to make Aadhaar cards mandatory – creating a central online database with the biometrics and personal details of over a billion people, which, realistically speaking, could easily be misused by a number of parties.
Representing Judge Puttaswamy’s fight were advocates Anand Grover, Meenakshi Arora, Kapil Sibal, Gopal Subramanium, Arvind Datar, Shyam Divan, Jayant Bhushan and Sajan Poovayya, along with countless Indian citizens across the country who refused to be quiet and voiced themselves, mobilising others and creating awareness about the issue across social media platforms.
II. What were we fighting for anyway?
Privacy as a concept has its ambiguities and changing understandings in different situations and circumstances is what has made this fight challenging. As per Henry Campbell Black’s law dictionary, the right to privacy “determines the nonintervention of secret surveillance and the protection of an individual’s information.” This further encompasses four aspects: physical, decisional, informational and dispositional. Also described as the “right to be left alone” described in Warren and Brandeis’ 1890 paper.
III. Privacy in Digital India – Are we ready for the Trade Off?
This understanding has now changed when the internet and social media took over our lives. Here, data is more valuable than anything. Ever noticed how the advertisements you see on your Facebook feed are related to your search history somehow? This is because Google and Facebook algorithms determine what is best suited for you. Here, data in the form of what you search for, what you view most and read get collated and in turn relates to what you are shown – in the form of advertisements, what you’re most likely to want to purchase, read, listen to, and so on. This is a horrifying thought when you really think about it. The sense of ‘big brother is watching’ doesn’t just apply to the government here – we’ve all read about people being arrested for things they post and share. We’re all too ready to click accept when third-party application requests to access our profile information and friends list all so we can do a quiz on which Hogwarts house we’d be in.
Earlier in July, it was reported that the NDA government announced the launch of Project Insight, which, long story short, would allow the government to monitor our social media pages to track and nab tax evaders, aimed at “strengthening the non-intrusive, information driven approach for improving tax compliance.” How exactly this will now work with the implementation of privacy rights on one hand, and data collection by social networking sites will only play out with time.
IV. Are we giving up Data Protection for social good?
The right to privacy can now limit the intrusion of State agencies in an individual’s personal lives, but in today’s day and age, it is a law for the protection of personal data overseeing the collection and its use by private companies that is indeed the next step towards digital privacy. But how ready are we for this? Will Government surveillance, to an extent, prevent social atrocities, such as the buying and selling of rape videos through social media platforms. Can it prevent the dissemination of fake news, that is then used to agitate and mobilise hate groups and tension? Nab cow vigilantism and lynchings Where does one draw the line between personal, self preservation and information dissemination for the sake of national security?
Akhil Deo aptly writes, “This is the bargain current privacy models allow us to make – to trade personal information in real time for tailored news, music, books, restaurant recommendations and a host of other services. As long as this personal information is not used to harm an individual in their interactions with other people or the state, they are satisfied with this exchange… What we are witnessing then is the manipulation of decision making, the very sphere that privacy seeks to protect. At best, this manipulation might keep you on Facebook longer or might nudge you to view a certain Netflix show. More worryingly, insurance companies might change premiums in real time depending on what you eat every day or how fast you drive, invariably exercising subtle control over individual behaviour and habits in pursuit of a corporate agenda and not a health and safety one. Most importantly, however, this is a threat to democracy. Individuals do not simply make consumer choices, they also make political ones.”
We highly recommend you read Akhil Deo’s analysis of how latest judgement impacts our data protection regime and the need to spark a new conversation on these laws in light of this new fundamental right.
V. What does this mean for Aadhar?
Scanning irises, fingerprints, collecting photographs and personal details, making it a must to link it to our pan cards for tax purposes has been a pain in our ass and no one welcomed Aadhaar being shoved down our throats. With Aadhar information already being leaked and easily available online, didn’t ease any skepticism either.
As previously mentioned, the fight has been on since 2012 when Aadhaar cards were made mandatory, linking it to numerous government benefits and social schemes that seriously affect majority of India’s population; for example, free midday meals at schools and subsided rice. The counter-debate made by the government was privacy being an ‘elitist concept’, even stating in court that “citizens don’t have absolute right over their bodies.” Absurd, right?
They argued that while Aadhaar may be dismissed by high class citizens, it was usual and beneficial for the rest of the country, many that lived below the poverty line.
The Aadhaar debate isn’t over. Whether the government has the right to access citizen’s information with the Aadhaar database is yet to be decided on by a smaller bench of judges, but what the right to privacy now does it give stronger and longer teeth to petitioners against the Aadhar system with a fundamental understanding and clarification of a right to privacy. Apar Gupta, a lawyer advising on the case, puts it aptly, stating, “The case is a victory, but it still needs to be applied – not only to Aadhaar, but to a lot of other cases.” More importantly, “This case was essentially on the existence of the right to privacy, but the true test of a constitutional doctrine is its application. Unless it’s applied effectively, we might get something purely academic.”
VI. How does this judgment affect Section 377 and the fight for LGBTQ equality?
In the 547-page-long judgement sexual orientation was clearly stated as an essential attribute of privacy. Sexual orientation is an attribute of one’s right to life and liberty, and the judgement made clear their stance on Section 377.
But alas, we cannot rush to celebration just yet. Section 377 is still alive and the case pending. The SC judgement spoke of sexual orientation as obiter dicta – opinion by a judge in deciding a case expressed in court or in written judgement. This does not become a part of the judgement, that is, legally binding.
It’s commendable to finally have India’s highest court condemn the absurd criminalisation of ‘alternative’ sexualities and hailing the LGBTQ community’s rights as basic human rights. Privacy does not limit itself to our bedrooms or homes – it entails who we are and who we exist as in public and private spaces, and to have the right to do just that. It is definitely a step in the right direction, albeit not a major one, but it is paving the way for a bright future for our LGBTQ community.
VII. How have our leaders taken the news?
While the nation celebrated, we awaited the verdict of our government officials. Though India’s IT Minister Ravi Shankar Prasad Tweeted about the government’s support of a fundamental right to privacy, and Arun Jaitley claimed he believed privacy to be a true right in the Rajya Sabha, it turned out to be more false than fact. Many individuals, including former attorney general Mukul Rohatgi and current attorney general KK Venugopal argued in court that the right to privacy was not a fundamental right. They put forth the government’s belief that the concept of privacy was “too amorphous” to be a fundamental right, as well as being an elitist concept that hindered the well being of low-class Indians. It’s going to be interesting to see how this plays out as well as how it affects political campaigns and manifestos. Will the Narendra Modi-championed ‘largest biometric system in the world’ AKA Aadhaar be completely shut down?
VIII. Is there more to this Fundamental Right than Privacy?
Like all fundamental rights, the right to privacy is open to ‘reasonable restrictions’ and only time will tell what our government deems as reasonable. Privacy is often misunderstood as secrecy – “what do you have to have to hide to want such a fundamental right?” But this completely misses the point. Providing a right to privacy impacts other cases and aspects of our lives as well, many which have been fought for for years now. The first thing that comes to mind is the infamous and contentious beef ban. Having beef in your house is a matter of privacy (and it’s related lynchings), opening up this decision for debate again. Arrests of everyday citizens for voicing disappointment in our government through social media is challenged. It’s about surveillance and police harassment for the sake of cheap thrills in the homes of young Indians across the country. As The Guardian points out, “Laws permitting authorities to tap phones and administer ‘two finger’ sexual assault tests could also potentially be re-examined in light of the judgment.”
A lot of changes are underway, and the interpretation and exercise of ‘reasonable restrictions’ will be done wisely, hopefully, in public interest and morality essentially. There is a lot to celebrate, but a lot to look forward to as well, as the fundamental right to privacy puts pressure on the updating of many other laws and judgements. For this to truly be a right it is more than just its recognition and acknowledgement in the Constitution, but its implementation and inclusion in the political, cultural, social aspects of the everyday lives of all citizens.
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