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.
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Written by Krishn Kaushik , Ravish Tiwari | Updated: August 28, 2017 12:07 am
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.
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.
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