SC Verdict Might Alter India’s Privacy Landscape, But Right to Privacy Won’t Be Absolute: Experts

The judgment will, however, allow citizens to legally challenge any government action deemed as a violation of privacy.

Supreme Court is pictured through a gate in New Delhi, India May 26, 2016. Credit: Reuters/Anindito Mukherjee

Supreme Court is pictured through a gate in New Delhi, India May 26, 2016. Credit: Reuters/Anindito Mukherjee

New Delhi: The legal fraternity and litigants who fought for right to privacy to be declared a fundamental right are of the view that while the August 24 Supreme Court ruling would fundamentally change the privacy landscape in India, the right – like all others – is not absolute and may result in government enacting more laws for security reasons. Every government action could, however, now be challenged in a court if it is seen as violating privacy.

Pavan Duggal, a cyber law expert and advocate, said the judgment would also pave the way for privacy protection by the corporate sector. “The judgment is topical, connected to ground reality, aptly recognises the challenges the users face with respect to internet and has opened up the door by saying this is what the privacy right is as of today while acknowledging the fact that technology will keep on changing.”

Consumers can now sue the state

Describing it as “one of the most progressive judgments you have seen in independent India,” Duggal said: “In practical terms lot of things have changed between yesterday and today. Today, if I get a call on my mobile or a WhatsApp message from a state-owned bank which I think is violative of my privacy, I can sue that bank and the state. This I could not have done yesterday because this fundamental right has been guaranteed by the constitution against state and state action – which is not only the government but also any instrumentality of the government.”

Little impact on surveillance 

On what the rights of a citizen are if his or her phone is put under surveillance, Duggal said: “That has not changed. The right to privacy is a fundamental right under Article 21 but it is not an absolute right. Article 21 says that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. So if there is a procedure by which your privacy can be curtailed, that is permissible even now, in accordance with the procedure established by law.”

This judgment, he said, also recognises the importance of informational privacy or privacy within an information. “It is opening the door for new technological developments that keep on happening. However, whatever the government wants to do now will have to somehow pass the threshold of the principles laid down by this judgment.”

Duggal also insisted that the judgment was in no way in conflict with the Right to Information Act as the Act covers right to public information and not private information.

Questions surrounding legality of Aadhaar data

On the issue of the impact of the SC ruling on the delivery of services through Aadhaar, Duggal said it will have a massive impact as “it recognises that every individual has a fundamental right to privacy. Once this is clear, the question now would be whether the collection of data under Aadhaar from 2009 till 2016 without any legislative sanction – as no law was passed by the parliament – had actually violated people’s fundamental right to privacy and if so, what is to be done with that data base?”

“Aadhaar was walking on thin ice from 2009 till 2016 when the Aadhaar Act was passed with the presumption that Aadhaar would be voluntary. So it only talked about the security of the Central Identities Data Repository. Meanwhile, the government made Aadhaar mandatory and a lot of things started getting linked to it, such as income tax, companies, bank accounts. So a complete eco system started developing around Aadhaar and that was without cyber security. So the Act now needs to be amended,” he added.

‘Aadhaar is shown as a solution, but the state does not have any data to support its claims’

Civil rights activist Nikhil Dey of Mazdoor Kisan Shakti Sangathan, who was one of the petitioners in the case, believes that the judgment has “established the principle that at least there is a fundamental right to privacy.”

“The order,” he said, “came because the government said there is no fundamental right to privacy and that was because they wanted to gather everyone’s data. That is why they moved out of welfare to its use in even income tax return filing and everything else.”

Dey also found the order significant because just in May, the then attorney general Mukul Rohatgi had told the apex court that people did not have such fundamental rights and “the concept of absolute right over one’s body was a myth”.

Dey said this judgment would also have an impact on the Aadhaar case. “I believe after this judgment when the matter goes back to the Aadhaar court, they are going to argue about reasonable restrictions and the duties of the state and that it would stop corruption and ensure proper delivery. But we have shown earlier that while Aadhaar is shown as a solution, the state does not have any data to support its claims. At the very least we think this judgment will put coercion and mandatory approach of the Centre to an end.”

The rights activist said their problem with Aadhaar began from the time the government began making it mandatory. “You can’t put a gun to people’s head and say that you can’t travel, have a bank account, school admission and the like without Aadhaar,” he said.

Aadhaar under UPA era

Dey said it would be wrong to say that the problem arose during the Narendra Modi government as former union minister P. Chidambaram today claimed. Reacting to Chidambaram’s assertion that “Aadhaar was intended to see that government’s benefits are distributed, there is no leakage and there is no duplication. Did we ever say that ‘Aadhaar’ will be necessary to buy a rail ticket or air ticket or ‘Aadhar’ will be required to admit your child in school?” Dey said it is not that things were fine during the UPA regime as they were being made out now. “We had filed our case during the UPA rule,” he explained, adding that the Manmohan Singh government was the one that first started making Aadhaar mandatory.

Dey hoped that Aadhaar’s linkage with ration distribution, mid-day meals and pensions would be reviewed. “The government officials at the grassroots level know it can never work. You can’t make computers and phones work in half the places, so it is not ideal for ration shops and for mid-day meal distribution. Aadhaar requires biometric authentication and you need internet transaction to connect to it. There are multiple problems related to this as the machines doesn’t work, the internet doesn’t work, often the biometrics are not read by the machines and at the end of it you have a man on the machine who can always exclude you by saying that your biometric is not matching.”

Court orders against making Aadhaar mandatory

Recalling that there were five court orders initially against making Aadhaar mandatory, Dey said “the government will now need to have a much higher standard to show how and why it wants to use Aadhaar and spell its advantage. They often use the argument that you have already lost your privacy with Google and Facebook, but there is no government order that forces me to opt for them.”

Senior Supreme Court advocate Kamini Jaiswal said the right to privacy judgment would “fundamentally change everything”.

“People will be able to claim right to privacy for a large number of things. Things are not going to be the same anymore. But in every fundamental right there are certain reservations. No fundamental right is absolute. So let us see to what extent how will they interpret it,” she said.

Jaiswal said she believes the judgment would also have an impact on use of social media. “When it comes to social media too it will have an impact but we will have to read the full judgment for that.”

Senior advocate Indira Jaising was quoted by an agency as saying that “it is a day to celebrate.” However, she had noted that its impact on Aadhaar was a separate issue but privacy cannot be compromised after this verdict.

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