One Year of India’s Right to Privacy: No Step Forward and Two Steps Back

By Prasanna S

One year ago, to this date, nine judges of the highest court of the land spoke in one voice as they upheld the status of the right to privacy as a fundamental right protected under the constitution. In that process, the court rubbished the government’s stand that 40 years of supreme court jurisprudence recognising such a right required reconsideration.

The government’s Make-India-Great-Again arguments were based on a 1954 judgment and the majority opinion of a 1962 judgment both of which were given in an era where fundamental rights jurisprudence was unrecognisably different from the modern post-’70s reading of our fundamental rights.

In a constitutional democracy in which the rule of law and the rulings of the highest constitutional court are respected by the government, one might expect the judgment to alter the way the government went about its business. In the past 12 months though, we saw this expectation slowly turn into hope and then a wish and then finally into despair.

The Aadhaar programme, the context in which the much celebrated judgment was pronounced, continued on its merry way with little change to its scope, ambit or practice(s).

News stories on data leaks were only slightly less regular than the reports of targeted violence against women, minorities and/or Dalits.

Efforts were also on to build a social media monitoring tool, which would enable the central government to listen to every person’s digital communications including, gasp, e-mails, delivering the 2.0 version of its big-brother-dom.

The last remaining hope was pinned on the work that the committee of experts led by Justice (Retd) B.N. Srikrishna had undertaken. That was to show the nation the path forward and suggest a legislative framework on privacy and data protection, even as there were deep democratic flaws in the constitution of the committee and its functioning. The much delayed draft bill, accompanied by a report that ostensibly justifies the choices in the bill, was released in late July of this year.

Did the draft personal data protection bill help end an otherwise very ordinary year for the right to privacy with a flourish?

Not one bit. In fact, it does a Make-India-Great-Again dance of its own as it attempts to find new language to advance the same arguments that were unsuccessfully advanced in the right to privacy case.

Sample this. It was argued a year ago that privacy does not require protection as an independent fundamental right because each of the harms that ensues because of a privacy violation are anyway justiceable as violation of other rights – harms such as financial harms, or unwarranted surveillance or reputational loss etc.  This was soundly rejected by the Supreme Court bench as it held that privacy was a standalone fundamental right and requires protection as such. However, this principle has found its way into the data protection bill that makes the consequent harm caused due to violation of privacy as a predominant consideration and not violation of privacy per se, which effectively de-recognises the right as a fundamental right. Contrast this with a right such as the right to free speech. How absurd would it be if there is an unlawful government order to take a news story down and if a news publication had to go to court and show harm caused to it by taking the taking down while challenging such an order?

The draft bill also attempts to misstate the reasons as to why it was perceived that such a legislation was needed in the first place. The real need for a privacy legislation is to address the mischief of privacy becoming a hard-to-enforce right both against state and non-state actors in a world which is increasingly looking at personal data as the new resource (like oil) that is to be nationalised, monetised and exploited. But the draft bill attempts to twist it by placing both the need for a flourishing digital economy and privacy of the individual at the same footing. And this is not merely academic nit-picking. Judicial interpretation takes the statement of objects and reasons of a statute as its life blood and each provision in the statute is interpreted keeping the objects and reasons in mind. After all, they say, the life of law is not logic but experience. An attempt to misrepresent the history and the experience that informed the need for this legislation is nothing less than intellectual dishonesty.

The justification of the draft bill for placing the “common good” of the digital economy and the individual right to privacy at the same footing is that rights, we’re told, are not deontological categories but only a means to an end after all.  Except, that justification is not supported by the jurisprudence and the nine-judge bench judgment, as had been pointed out. It must be added that such justification is another attempt to undo the Puttaswamy judgment as it reinstates the legal logic that formed the basis of the ADM Jabalpur emergency judgment, which was expressly overruled in the Puttaswamy case. This is not a denial that individual fundamental rights do not have justifications rooted in the utilitarian common good – but only that the common good is not the only justification of any of the fundamental rights. Each of the fundamental rights has multiple justifications ranging from consequentialist justifications, utilitarian justifications to moral justifications rooted in the inherent dignity of every human being.

The centre-staging of the concerns of “digital economy” has an even higher price. The idea of common good that informs that reasoning is closely linked to the idea of common detriment, which effectively goes back to looking at personal data as a resource to be nationalised, monetised and exploited. As we addict the economy to live off citizens’ personal data, the violence and oppression that punctuates the state-versus-people conflicts that relate to resources such as land, oil and minerals will ensue in no time.

The only saving grace in the draft bill is perhaps is its tacit rebuke of many of the past practices of the Aadhaar project. Even so, it must be said that in the past year, the right to privacy took no step forward and two steps back.

Prasanna S. is a Delhi-based lawyer. He assisted the petitioners’ side in the right to privacy/Aadhaar cases in the Supreme Court. He tweets from @prasanna_s.

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