After over two years of the government maintaining that Indian citizens don’t have a fundamental right to privacy, a nine-judge Constitution bench of the Supreme Court is hearing a bunch of cases on the matter.
Deciding this will entail determining whether the opinion of an eight-judge bench in 1954, or a six-judge bench in 1962—that there is no such fundamental right—is the correct expression of the constitutional position. The question has been addressed several times since, but by smaller benches; ergo, nine judges this time to settle the matter once and for all.
Unfortunately, the government of India has not been able to take a stand on the issue. In a case challenging changes to WhatsApp privacy policy, it is arguing that right to privacy is integral to right to life and personal liberty and, therefore, it must be protected. In the court next door, it is seen vacillating before the nine-member bench, saying right to privacy has credibility in developed countries but not in developing countries like India. The absurdity of the position doesn’t reduce its offensiveness even by an iota.
Let's take a look at what privacy really stands for. Particularly in the context of the Internet, it means three things.
First, secrecy, which means the ability to keep messages private so that their content is known only to the intended recipient.
Second, anonymity, which is the ability to keep the messages obscure in terms of who has published them and who is receiving them. Anonymity is crucial, both from the point of view of reading and publishing.
Finally, autonomy, which is the ability to make life decisions free of any force seen violating our secrecy or anonymity. These three together constitute what we call privacy, one of the preconditions for achieving democracy.
What has complicated the current debate is the extraordinary emphasis on Aadhaar, as if the right to privacy was only about citizens' digital identity! Guaranteeing a fundamental right that can be enforced even against the government is an issue far more important than a particular scheme.
In the age of the Internet, the 'right to be left alone' also includes the right not to be put out there or exposed involuntarily. In the age of biometric identification, social profiles and cashless economic transactions, forced disclosure of information that comprises our identities damages an essential component of personal liberty. Whether the individual’s information is used on its own or analysed, profiled, or linked to that of other related persons, forced disclosure of personal information vests power asymmetrically with the state.
Arguendo, Aadhaar may certainly be offering a few benefits, but its extraordinary reach, covering all activities of citizens, correctly leads us to suspect the intent of its proponents. How are train ticket and telephone number linkages relevant to public distribution schemes? Currently, the mission creep of this so-called panacea for all corruption only seems to be rendering citizens naked in front of the government even as the latter's own activities remain guarded under exceptions of the Right to Information Act.
But for the free market, this presents an opportunity where customers demand privacy in their products, by design. Take, for instance, WhatsApp, Apple or Signal. The Internet service market is dominated by companies that provide 'free' services in lieu of massive privacy invasion. This model, in which the consumer is the product, is doing enormous harm and destroying our privacy environment completely.
India’s greatest advantage in the 21st century is its people. And Indian Internet companies can provide global digital service platforms that protect, rather than destroy, their privacy. They can provide reasonably-priced, universally-available, privacy-respecting services that compete directly with those provided by the US data miners.
If the Supreme Court places India in the vanguard of constitutional democracies, then 'Digital India' and its various forms will have a legal and constitutional backing, paving the way for other countries. Thereafter, the legislature must have a people-centric law that protects citizens and their data from the interests of private players.
But if we decide to join the anti-privacy bandwagon, those dystopian stories will not stay confined to books or television.
Mishi Choudhary is a technology lawyer, and president and legal director of SFLC.in, a pro bono legal services organisation.
