Data protection is not a substitute for a right to privacy but the two are interlinked
India is proud of its status as an IT superpower but when it comes to data protection and privacy laws it’s safe to say we are not a world leader. That’s an anomaly that is crying out to be corrected and there will be many battles before we reach a satisfactory conclusion. Now a nine-judge bench of the Supreme Court has just finished hearing arguments in the Aadhaar case that centred around whether privacy is a fundamental right, as defined by the Constitution. The bench was constituted because many petitioners had come before the court arguing that Aadhaar’s biometric authentication scheme violated the privacy of Indians and thus infringed their fundamental rights. Since data is the lifeblood of the Information Age, it’s certain that whichever way the court rules, the judgment will be a historic one.
The Centre’s clearly determined to protect Aadhaar which has become one of its keystone schemes. As a result it has taken strong stands that privacy is not a fundamental right under Article 21 or Article 19 of the Constitution. The Centre argued that the Constitution’s framers had gone into great detail but didn’t mention a right to privacy. On a different note, it argued that the right to privacy could not be used to deprive millions of poorer people of the benefits of the Aadhaar scheme — this argument appears to assume that privacy is only for the upper echelons of society. The Government’s lawyers also pointed out that there were multiple facets to privacy and took the stand that each should be dealt with individually. In earlier cases the Supreme Court has held that privacy was a Common Law right but not a fundamental right. Against this, the opposing side argued that privacy was an intrinsic part of ‘Right to Life’ under Article 21 and also Article 19. They also held that private citizens need a fundamental right to privacy not only against the Government but also against giant corporations that are accumulating data. During the hearing the government also informed the court that it’s forming a committee to look into data protection under former Supreme Court judge BN Srikrishna. However, the committee’s composition may raise eyebrows amongst privacy advocates because it includes UIDAI (Aadhaar) chief Ajay Bhushan Pandey along with several other government nominees. A data protection act isn’t a substitute for a fundamental right, privacy advocates argue.
The Aadhaar judges have a number of options before them.
They may declare privacy’s a fundamental right but the Aadhaar scheme doesn’t contravene it. Alternatively, they may accept Justice DY Chandrachud’s proposition that different levels of privacy need different levels of protection. If they take a strong stand and declare that Aadhaar infringes the fundamental rights it would be a bombshell.
Whatever the decision, India, as a global information technology superpower, will have to greatly strengthen its data protection and privacy laws.
(This article was published on August 3, 2017)
