The Supreme Court’s landmark verdict making individual privacy a fundamental right will impact daily lives in ways that range from eating habits to online behaviour, and from sexual preferences to welfare scheme benefits.
KRISHN KAUSHIK and RAVISH TIWARI draw up a list, one letter at a time
Aadhaar: The world’s largest biometric project. The government has collected biometric and demographic data of 1.17 billion Indians, which it claims will help in plugging leaks in social welfare schemes. Several petitioners had challenged Aadhaar claiming that since it is mandatory in all but name, it goes against their right to privacy. The government argued that Indians don’t have a fundamental right to privacy, which a nine-judge Bench disagreed with on Thursday, stating unanimously that all Indians do, indeed, have a constitutionally protected fundamental right to privacy.
Biometrics: Biometric data include photographs, fingerprints, iris scans etc., which can be used to identify a person. Apart from the welfare schemes in which it is used to validate a beneficiary’s identity, India is pushing it for a host of other services, and companies are building technology to use this biometric data. Activists say such a large repository of biometric information can be used as a tool of mass surveillance.
Consent/Choice: In the backdrop of growing acts of violence against those perceived to be involved in beef trade or those who allegedly eat beef, the nine-judge Bench in the privacy case said nobody “would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life”. At a time of increasingly intrusive majoritarianism, the court has made it clear that “liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind”.
Data-mining: Earlier this year, India’s richest man, Mukesh Ambani, said: “The foundation of the fourth industrial revolution is connectivity and data. Data is the new natural resource. We are at the beginning of an era where data is the new oil.” The Supreme Court noted: “Recently, it was pointed out that Uber, the world’s largest taxi company, owns no vehicles. Facebook, the world’s most popular media owner, creates no content. Alibaba, the most valuable retailer, has no inventory. And Airbnb, the world’s largest accommodation provider, owns no real estate. Something interesting is happening. Uber knows our whereabouts and the places we frequent. Facebook at the least knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to.”
Euthanasia: Indian law disallows medically assisted suicide. But the Bench said the right to privacy includes the right to refuse food or even medicine. Justice J Chelameswar wrote, “An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy…”
Financial Technology: As Internet penetration increases, so does the opportunity for financial institutions to use technology to capture and service clients better. The Narendra Modi government has been an enthusiastic backer of FinTech, using Jan Dhan Accounts, Aadhaar and Mobile, to reach a large section of the population that lay outside the banking system. On the other hand, extensive use of FinTech in a country with poor Internet literacy and little awareness of cyber hygiene is in itself a threat to the integrity of the financial system.
Google, etc.: Companies such as Google, Facebook, Uber, Airbnb, Amazon, etc. probably have more data on users than the governments of their countries. The privacy of citizens needs protection from these non-state players, too. As Justice S K Kaul said, “Children around the world create perpetual digital footprints on social network web sites on a 24/7 basis as they learn their ‘ABCs’: Apple, Bluetooth, and Chat, followed by Download, E-Mail, Facebook, Google, Hotmail and Instagram.”
Health records: Health Records are important, private documents, whose publication can lead to social embarrassment and worse. “An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy,” the Supreme Court said, qualifying its position, however, by saying that if such records are collected by the state preserving the anonymity of individuals, “it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it”.
Information control: Justice D Y Chandrachud mentioned three internationally accepted aspects of privacy: spatial control, decisional autonomy, informational control. The third facet is particularly relevant in today’s “era of ubiquitous dataveillance”, he said. “Informational privacy”, the judge said, “is a facet of the right to privacy”, adding that “the dangers to privacy in an age of information can originate not only from the state but from non-state actors as well”. Informational control, Justice Chandrachud said, “empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person”.
Juvenile justice: The Juvenile Justice Act was mentioned by the government to argue that India does not need a fundamental right to privacy. The Act guarantees that “every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process”. While the JJ Act makes the child’s privacy a statutory law right, last week’s privacy judgment reinforces the right of each child to have his details kept private even if he or she is charged for a crime.
KYC: ‘Know Your Customer’ is a mandatory requirement for the government — and extremely valuable for businesses such as insurance firms, banks, credit card companies, e-commerce firms, etc., who must know their customers as intimately as they can to tailor products for them. This is being done using unstructured data trails — cookies, metadata etc — on the Internet. Companies are sharing and trading individual profiles as commodities. The privacy judgment is likely to put a degree of check against unauthorised ‘commodity-fication’ of private profiles taken off the Web.
Laws: The Supreme Court ruled that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”. Attorney General K K Venugopal had argued that “the right of privacy may at best be a common law right, but [it was] not a fundamental right guaranteed by the Constitution”. The court said that “infusing a right with a constitutional element” gives it “a sense of immunity from popular opinion and, as its reflection, from legislative annulment”, which a common law right would not have.
Mobile: With India emerging as one of the largest mobile handset markets and Chinese companies being one of its biggest suppliers, the issue of data protection has long been of concern for Indian authorities. The SC’s privacy ruling may force mobile phone companies to tweak data privacy and protection settings.
NATGRID: Conceptualised when P Chidambaram was Home Minister after the 26/11 Mumbai terror attacks, NATGRID seeks to integrate over 25 categories of database from agencies like railways, banks, airlines, credit card companies, immigration, etc., and make it available to law enforcement officers. Following last week’s order, the implementation of the programme could require amendments in several laws to allow sharing and transferring of data on items such as property and bank transaction details.
Online shopping: Buying online leaves electronic footprints that can be aggregated to reach conclusions on the nature of an individual’s food habits, language, health, hobbies, sexual preferences, friendships, ways of dressing, etc. Companies can dive into this reservoir of private data on online buying to target advertising at individuals. But following the privacy verdict, e-commerce companies will have to remain cautious about sharing data aimed at targeted advertising.
Profiling: Every person willingly shares some bit of information about herself to particular authorities, companies, or institutions. But when this information is no longer confined to silos, and an authority or company can create interlinks between the separate islands of information, they can assess the personality of the individual in question. European Union regulations in 2016 called it profiling, defining it as “automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences”.
Questions: The Supreme Court judgment has clearly established the vertical application of the right to privacy against the state. However, its horizontal application, against non-state actors, has been left open to case-by-case adjudication in the future.
Reproductive rights: The Supreme Court counts reproductive rights as inherent to the right to life and liberty. Like privacy, this right is not mentioned in the text of the Constitution, but is a penumbral right — one derived from rights mentioned in the text. In 2009, the then Chief Justice of India K G Balakrishnan wrote, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21…” But more importantly, Balakrishnan noted that a woman’s reproductive choices also included the right to “abstain from procreating”. The Supreme Court used the jurisprudence on reproductive rights in India and the United States to draw parallels with privacy as a penumbral right.
Sexual identity: “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual,” said the SC. It said its 2013 judgment, which re-instated Section 377 IPC, effectively criminalising homosexuality, struck a “discordant note” on the jurisprudence of privacy. LGBT rights, the court said, “inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination”.
Terror: The seamless structure and anonymity provided by the Internet has emerged as a new space for terrorists to exploit — in the form of indoctrination, cyber attacks on financial systems, etc. Justice Chandrachud underscored the “legitimate interest” of the state to monitor the Internet against terrorists, subject to just, fair and reasonable restrictions against encroachment into privacy.
Unauthorised taps: Though guidelines on phone taps are already in place, the privacy ruling has further reinforced protections against unauthorised surveillance.
Violence: Justice Chandrachud observed that “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets”.
Western import: The judgment demolished the argument that privacy is an elitist construct imported from western countries. It “categorically rejected” the premise that the poor in the third world were more concerned with “economic well-being”, and “privacy is a privilege for the few”. Justice Chandrachud asserted that “every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects.”
X-Factor: While adjudicating on the limited question of privacy being a fundamental right, the Bench clearly also had in mind the likely evolution of ideas of privacy as technologies matured. Justice Chandrachud referred to “wearable devices” and the vast amount of data involuntarily generated by its users that could compromise privacy. Along with the evolution of new age technologies — artificial intelligence, virtual reality, augmented reality etc. — will come new challenges to the protection of privacy. The judgment indicates that it is alive to future developments as well.
Youth: The judgment underlined that the privacy of the socio-economically underprivileged was as important as that of anyone else — but given the extent of the adoption and reliance on new technologies by the younger generation, and in many cases their refusal to be straitjacketed within majoritarian frameworks, the issue holds crucial importance for this demographic as well. The ruling is also likely to be their bulwark against non-state actors as and when the privacy discourse gains critical mass among youth hooked to social media and e-commerce.
Zero tolerance: By making privacy a fundamental right by a 9-0 verdict, SC has immunised it against attacks by simple legislative majorities.