Informational privacy, the next challenge

The Supreme Court’s articulation of the broad contours of the right to privacy is very valuable, says legal expert Chinmayi Arun.

Published : Aug 30, 2017 12:30 IST

Chinmayi Arun

Chinmayi Arun

Chinmayi Arun is executive director of the Centre for Communication Governance at National Law University, Delhi, where she is also an assistant professor of law. A fellow of the Berkman Klein Centre at Harvard University, she has published academic papers on surveillance and the right to privacy in India and on information gatekeeper liability in the context of Internet intermediaries.

Chinmayi Arun is the lead author of the India country report in Freedom House’s Freedom on the Net report for 2014 and 2015, and of the India report in the Global Network of Centres’ study of online intermediaries. Her public commentary on the right to privacy has been prominent and she has lectured nationally and internationally on the subject. Excerpts from an email interview she gave Frontline :

The Centre for Communication Governance has followed the Supreme Court’s hearing on the right to privacy closely. Were you expecting a unanimous judgment in favour of the fundamental right to privacy like this from the nine-judge bench from your reading of the observations from the bench during the hearing?

We were expecting a judgment in favour of the right to privacy but had never thought about unanimity. It is good to know that none of the judges wanted to be on the wrong side of history this time. Truthfully, I have faith in most of the Supreme Court judges when it comes to these things. I would have been very surprised if the bench had held that there is no fundamental right to privacy.

People did tell me that they were worried at the questions the bench was asking. I was not worried about the questions because privacy is a relatively new and unusual right. It takes most people time to see why it matters; it is okay to ask questions towards achieving a better understanding.

Does the unanimous judgment suggest that the court was wary of being on the wrong side of history by declaring that right to privacy is not fundamental? If it is true, how do you explain the stand of the government and the many respondents who articulated the opposite view?

Yes, it does. If you think of the government’s efforts as a strategy to (a) slow down the Aadhaar proceedings while it forces citizens on to the database and (b) ask such regressive questions that any judgment upholding privacy would be received with joy even if it imposed little actual restraint on the government, the government did not do too shabbily.

Perhaps it is also a question of strategic narrative. For the last two years, the government and other entities advocating on behalf of Aadhaar have managed to obscure the right to privacy debate through repeating misleading public statements. This year there has been a lot of advocacy and public engagement to remedy this.

Citizens realised what they would lose without the right to privacy and saw the many judgments that upheld privacy over the years. They realised that this right was a part of their lives. It is only after this change that the government’s stand became unpopular. By then it was too late for the government to go back on it. You can see from public statements being made by Ministers that there is already some effort to undo the damage inflicted by the government’s anti-privacy stand.

Why do you think the framers of the Constitution did not consider right to privacy as a fundamental right, and expressly excluded it from the list of fundamental rights, as the Constituent Assembly Debates reveal?

They did discuss it a little and proposed amendments that would have covered some privacy rights. In the Constituent Assembly Debates, there’s even a statement from [B.R.] Ambedkar saying that he sees the value in putting protection against arbitrary search and seizure in the Constitution, even though it is already in the Criminal Procedure Code.

There was some debate on search and seizure on one hand and interception of communication on the other. However, no powerful or convincing reasons were offered in the recorded debates for rejecting the inclusion of these rights in the Constitution. Perhaps one day a historian will unearth material about the negotiation that took place off the record, but on the record it is not clear why it did not pass.

It may help to remember that this was a relatively new right when our Constitution was drafted. It existed mainly in international human rights documents and gradually found its way into national constitutions.

The government has welcomed the judgment saying it has been its stand all along in Parliament and that it was the UPA government’s failure to provide legislative support to Aadhaar which triggered a legal challenge in the Supreme Court. Would you consider it a case of doublespeak?

Yes, it is exactly that. The UPA government never argued that there is no fundamental right to privacy. This was an argument raised by the current government. It is only now, after the judgment, that the government is saying that there is a right to privacy. If it had been saying this all along, the Constitution Bench of nine judges would have been unnecessary. As the judges pointed out, all this effort was undertaken because the Attorney General misread the M.P. Sharma judgment.

Looking back, do you think the reference to the nine-judge bench was justified and helped to clarify many issues?

No, it was not. The notion that there is no right to privacy was a ridiculous argument based on a bad reading of a judgment. The court seems to have seen it that way as well.

Perhaps the good thing to emerge from this judgment will be that people will be able to articulate the dignity and personal liberty argument clearly. Those seeking decriminalisation of homosexuality may finally manage it, since the Supreme Court has quite clearly declared that the choice of partner falls firmly within the right to privacy.

However, the judgment has done little to advance the jurisprudence on informational privacy, apart from ensuring that a data protection law will be passed. It has created a three-part test which the government needs to pass if it wishes to violate privacy. The test is rather broadly worded, which means that the judiciary will continue to struggle with informational privacy and may allow state abuse of power from time to time.

By its express overruling of the M.P. Sharma and Kharak Singh judgments, did the Supreme Court accept the government’s contention that it had held that right to privacy was not a fundamental right? I am asking this because the petitioners had argued that in both the cases there was no binding declaration by the court that the privacy right was not fundamental. Just as many smaller benches had ruled in favour of the right to privacy all these years, despite M.P. Sharma and Kharak Singh, could we not have continued without overruling? Can we say the court has rejected the contention that the many rulings in favour of right to privacy by the smaller benches were per incuriam?

No. The Supreme Court pointed out that the government was reading M.P. Sharma and Kharak Singh incorrectly. It then overruled both just to be on the safe side, but it went to some trouble to clarify that read correctly, neither judgment is good reason to argue that there is no right to privacy. This is exactly right, and is in fact what I had written in my comment on the Attorney General’s argument.

The Supreme Court’s articulation of the broad contours of the right to privacy is very valuable. The clarification, for example, that the ruling in Koushal was wrong may have great impact. The judiciary may now rule in favour of privacy without hesitation and may refer to the right in more contexts than it has done so far.

With the Supreme Court declaring the right to privacy as a fundamental right, will the Aadhaar Act stand legal scrutiny? What if the government strengthens the safeguards in the Act to match international standards?

It is apparent from the majority bench’s articulation of the right, recognising collection and aggregation of data as a violation of the right to privacy, that the Aadhaar Act does impact the right to privacy.

However, by offering up a broadly worded set of conditions under which the government may restrict the right to privacy, the Supreme Court has offered room for some parts of the Aadhaar Act to survive. It will be up to future benches, including the Aadhaar bench, to refine and interpret the judgment’s standards for how the right to privacy may be restricted.

The trouble is that neither the government nor the Supreme Court seem concerned about making sure that the safeguards are actually effective. The Aadhaar Act already has language about securing data. The trouble has always lain in two quarters. One is that in reality, the Aadhaar system malfunctions, and when it does, the lack of transparency and accountability means that citizens cannot seek recourse. The second is that there are many broad exceptions made for law enforcement agencies, creating great potential for function creep. The privacy judgment does little to help in these issues, which means that it is really for the Aadhaar bench to write a judgment with safeguards that are of some use in the 21st century.

The Supreme Court has held in the judgment that the invasion of the right to privacy is permissible only if there is a compelling state interest and a reasonable procedure [is] established by law, justified by the doctrine of proportionality. How do you think this qualification of the privacy right will be a safeguard in a practical sense? The state can always claim that a law facilitating invasion of privacy satisfies the three tests laid down by the court.

No, I don’t. This was unnecessary and was exactly what I had warned against before the judgment was published. The state will indeed always claim that it satisfies the tests. This means that each bench before which the question comes up [will] have to develop what is meant by reasonable procedure and proportionality in the context of privacy. Many of the harms caused by violation of the right to privacy are invisible. The outdated Indian command-control regulatory model will not help in this context.

The court has accepted the petitioners’ claim that the right to privacy must be left to evolve itself and that the court should not try to confine it to a few identifiable rights. In fact, the amorphous character of the right—acknowledged by both the petitioners and the respondents—was cited as a factor why it should not become a fundamental right. This amorphous character, therefore, makes privacy a unique right among all the fundamental rights. Do you, therefore, foresee a spurt in litigation claiming violation of privacy rights by both state and non-state actors? Is it an enforceable right against a non-state actor?

Yes, I do see a spurt in litigation. The Supreme Court has said [that] it should be enforceable against non-state actors but has also asked that the government develop a means to achieve this. However, I think that people will be challenging routine violations of privacy such as the use of closed-circuit television cameras in privately owned public spaces and intrusive questions asked in forms or workplaces.

One repeated argument, which the respondents made during the hearing, was that the right to privacy does not matter to the poor and the deprived and that this whole debate is elitist and has no relevance to them. Does the court answer this contention in the judgment?

Yes. It directly repudiates this argument. The judgment makes for beautiful reading in its articulation of dignity and how the right to privacy has always adhered to persons even before the Constitution was written. It will be very difficult for anyone to make this outrageous argument ever again.

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