Right to privacy welcome, but in an era where personal data is goldmine, challenges remain
The Indian state does not own your body, it does not own your personal data. It can at best be a repository of some of this data which can be used for better welfare disbursement and national security. That is the main takeaway from the Supreme Court’s landmark judgement on the right to privacy. The 547-page order will require a lot of reading and understanding for those of us who are less legally inclined, but the nine-judge Supreme Court bench has upheld the main contention that there is a fundamental right to privacy of every Indian citizen and the state or private companies cannot interfere into our lives. Crucially, it makes clear that because we allow someone access to our private information, it cannot be used for any other purpose or by other entities. This is welcome and it must be said that the Government’s arguments against privacy were banal at best. This judgement overturned two previous orders by the Supreme Court itself — the famous Kharak Singh case and the Govind case. However, in a country with a heaving population, where information is taken at every possible opportunity and privacy is abused at every corner, the ramifications of this order remains to be seen. The biggest problem is trade in private information, whether this information is gained through visitor entry logs in buildings or by global corporations. What does this judgement mean in the longer-term for various other aspects is yet to be seen. For example, activists are celebrating the comments made by the apex court on homosexuality in this judgement. Indeed, what someone does inside a bedroom with another consenting adult of whatever gender is his or her business. It is shameful that the legislature has not redressed some antiquated laws on the issue.
But as many other aspects of Article 21 of the Indian Constitution, which enshrines the right to life and personal liberty, there are reasonable restrictions that the court has provided for. And that will be crucial aspect going forward as even this judgement recognised that the Government can use personal information for national security. But that is a thorny issue. This judgement also does not in any way attack the Aadhaar system when it comes to the distribution of social welfare. The decision does not mandate any data protection norms for information or establish a system of punishments and fines for those who intentionally and unintentionally leak information. That, of course is the job of the legislature. But in India, we have the dubious distinction of having an intactivist legislature, an activist judiciary and a supreme executive. Inside some newspaper and television offices, some will ask questions of hidden cameras and recorders and what this judgement means for dubious ‘sting journalism’ and where does public interest override personal liberty and privacyIJ Much like the decision on instant triple talaq that the court delivered a couple of days ago, there needs to be a legislation around the right to privacy and data protection, particularly in the information age. The Indian system has allowed a veritable land grab of information by foreign technology companies and Indian service providers by not putting proper laws and rules in place. We hope that this judgement will push the legislature and the executive to formulate laws that protect the privacy of the Indian individual while not taking away his other enshrined rights under Article 21, which Aadhaar can assist in.