By Eben Moglen and Mishi Choudhary
Last week’s arguments before a nine-judge constitutional bench of the Supreme Court, which is at long last deciding whether Indian citizens have a fundamental right to privacy, have established two realities clearly. First, the judges see the profound importance of any decision to create such a fundamental right. Second, they would like to know just what the outlines of this right should be.
Privacy is, as Brandeis and Warren said in 1894, “the right most valued by civilised men”, “the right to be left alone”. But in our age, the age of the internet, the right to be left alone includes also the right not to be put out there, or exposed involuntarily.
Forced disclosure of the information that comprises our identities, in the age of biometric identification, social profiles, and cashless economic transactions, damages an essential component of all personal liberties. Whether the individual’s information is used on its own, or is analysed, profiled, or linked in the “social graph” to that of other related persons, forced disclosure of personal information in today’s society creates power in the state which receives that information.
Not all of the constitutional right of privacy cases in the age of the internet will involve forced disclosures. The cases that will matter most, should the court decide in favour of the fundamental right, will be where the government imposes a form of disclosure that, like limitations on physical movement, inhibits the “ability to be oneself”.
In these cases, the court would find that the fundamental right to privacy is infringed when forced disclosures of personal information to government interfere with the exercise of any of the freedoms the Article 19 protects, when you cannot actually have your freedom of movement, or of expression, for example, because you are compelled to give information that empowers government to restrict or deny your rights.
So, for example, if the government were to do here what the Chinese government has done since the death of Liu Xiaobo, not only blocking messages of mourning or containing pictures of Liu on WeChat (the Chinese equivalent of WhatsApp), but also keeping track for subsequent surveillance of everyone sending or receiving such messages, this surveillance based on private expressions of emotion or opinion would violate the freedom of expression in Article 19.
The same applies to the liberties guaranteed by Article 21. Where, for example, an Aadhaar number is required before a patient can request ambulance service, as has been ordered recently in UP, the right to medical care protecting life declared by the Supreme Court in Parmanand Katara vs the Union of India is violated by the compelled disclosure of identity.
We think that, if the Supreme Court decides the present issues fully, it will find that the common factors in all successful constitutional privacy claims are (1) the forced disclosure of personal information; (2) under circumstances adversely affecting an individual’s ability to exercise freedoms protected by Article 19 or liberties guaranteed by Article 21. Also, under the terms of Article 14, that all persons must be equally treated with respect to requirements of personal information disclosure, without discrimination.
The importance of a fundamental right in our system is that it can only be enforced against the state. “Platform” social media companies receive voluntary disclosures of personal information in immense quantities every minute, but they are not subject to constitutional controls. Moreover, though these corporates are indeed ubiquitous in our lives, they are not obligatory. In dealing with them, we still have choices. Only the power of the state can, in fact, compel us to expose ourselves more fully than we choose to do. The state can as well, of course, legislate to protect our privacy against private parties, and should do so.
The forthcoming decision of the Supreme Court will be one of the most important legal decisions in the world this year. Societies far beyond India will be watching to see what it decides. India will, as a result of the Supreme Court’s judgment, take the lead among democracies in recognising and enforcing its citizens’ fundamental right to privacy, or fall in line behind despotic societies in destroying it.
Eben Moglen is Professor of Law and Legal History at Columbia Law School. Mishi Choudhary is Legal Director and President of SFLC.in
