Right to privacy in digital era

At the height of the Communist oppression in East Europe in the 1970s, when individual liberties had been entirely crushed in the name of the State, a Polish poet made an impassioned plea for his right to privacy.  Instead of the Marxist slogan “Workers of this world, you have nothing to lose but your chains!”, which was then chanted with tedious and predictable unison, he simply wrote: “Workers of this world, leave me alone!”

That basic human proclivity to privacy, in areas where neither the State nor non-State actors, or for that matter anybody, has the right to intrude, has been accorded by the Supreme Court’s latest judgment the status of a fundamental right, under Articles 14, 19 and 21 of the Constitution. In doing so, the nine-judge Supreme Court bench overturned a 63-year-old judgment that had refused to recognise privacy as a fundamental right. Echoing the plaintive but powerful plea of the Polish poet, Justice Chandrachud pronounced: “Privacy postulates the reservation of a private space for the individual, described in the right to be let alone. The concept is founded on the autonomy of an individual. The ability of an individual to make choices lies at the core of the human personality”.

Beyond legalese, the court has addressed many larger and fundamental philosophical questions.   In recent times, we see the development of two mutually opposed trends.  First, there has been a phenomenal advancement of technologies that have the capacity to intrude in the personal lives of individuals.  Second, and precisely for this reason, there is a felt desire in individuals to ensure that, notwithstanding such technologies, their right to privacy is not whittled.  Can these opposing trends be reconciled, and if so, what is that modus vivendi?  

I don’t think any citizen, however evangelical about the protection of personal privacy, is unwilling to part with some aspects of that privacy for his or her own benefit.   For instance, if I want a smooth transfer of a tax refund directly to my bank account, I have to give details of that account to the bank.

Similarly, if I am the legitimate beneficiary of certain monetary welfare measures of the government, I will not be averse to cooperating in a system, such as the biometric based Aadhaar, to ensure that such benefits reach me, and are not diverted to someone else, as used to happen rampantly in the past. The Supreme Court has, therefore, said that digital platforms that work towards this end are valid.  To quote Justice Chandrachud: “In a social welfare State, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society.  There is a vital State interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients”.

On the other hand, if the information that I voluntarily and in my own interest part with, is misused for mala fide purposes by State authorities, such as for illegal surveillance, I would have strong objections. This would be doubly so if the only reason why this is done is because I do not agree with everything the government does.  The issue of privacy then becomes linked to the larger ideological question of the right to dissent in a democracy.

Appropriately, therefore, the Supreme Court said: “Criticism and critique lie at the core of democratic governance. Tolerance of dissent is equally a cherished value.  The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom”.

Similarly, while discussing the issue of privacy, the Supreme Court has pronounced on several other fundamental issues that are of vital interest to a democratic society, such as the beef ban, abortion rights, sexual orientations, euthanasia, and even — like the wish of the Polish poet — the right to be left alone.  On matters like the beef ban, Justice Chelameshwar said: “I don’t think anybody would like to be told by the State what they should eat or how they should dress…” On abortion, the court was of the view that “a woman’s freedom of choice whether to bear a child or abort her pregnancy fall in the realm of privacy”. On the question of sexual orientation, the court was particularly blunt: “That a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders is not a sustainable basis to deny the right to privacy”.  

In fact, broadening this argument, the court made the foundationally important ruling that, “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities… The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection”.

On the right to be left alone, Justice Sanjay K. Kaul made the far-reaching comment that “an individual who is no longer desirous of his personal data to be processed or stored should be able to remove it from the system, where it is no longer necessary, relevant, or is incorrect”.  

Quite clearly, under the awning of pronouncing on the right to privacy, the jurisprudential majesty of the Supreme Court has specifically included a great many other issues that will greatly strengthen the fabric of our democracy.

At the same time, the unanimous judgment has retained the right balance by stating that the State can, for bona fide and transparent reasons in the interests of definable public good, exercise reasonable restrictions on such a right, especially for welfare measures for the poor and deprived, national security and criminal investigations.

However, at rock bottom, citizens now have been given the right to contest unwarranted encroachments on their right to privacy.  This is a giant leap forward. Private firms that collate data in an era of Internet and data mining must be on their guard.  The government must also expedite its efforts to bring in a robust data protection regime.  We live in times when technology has made us both a beneficiary and a victim.

Thanks to this landmark Supreme Court judgment, we are now in a position to distinguish between the two, and fight for our rights to do so.