Has the Last Word Been Spoken About Privacy?

Asoke K. Laha
President & MD
Interra IT
 

The recent Indian Supreme Court’s decision on the right to privacy, by any standard, is an epoch-making one. It is not the question of who won or who lost – that may be a trivial point in the entire narration. I should say India won, and our long-cherished democratic institutions won. Some believe that the most important digital grid that India is building a unique identification number scheme, popularly known as Aadhaar, may take a hit since the court’s decision has set some limitations. Yet, the case to decide about the constitutional validity of Aadhaar is pending before the Supreme Court. The cardinal principle of our fundamental right is that it should be subjected to public morality and social harmony. 

Debates on privacy laws are not unique in India.  All democratic societies have voiced their need for protection of privacy and have expressed concern about the intrusion of the state authorities into individual freedom. For example, Canada passed a legislation known as the Personal Information Protection and Electronic Documentation Act (PIPEDA) in January 2001. In a nutshell, PIPEDA specifies the rules to govern collection, use, or disclosure of personal information. The Act also defines what constitutes personal information. It means an identifiable individual, but does not include the name, title, or business address or telephone number of an employee of an organization. The PIPEDA requires organizations to obtain consent before they collect, use, and disclose any personal information, and to collect them in a reasonable, appropriate and lawful way. 

All civilized and democratic societies have their privacy laws in place. My reading about the construction of the right is that none of the countries have granted unfettered rights to individuals. They should be subordinated to public interest and morality. It is a happy augury that India has also embraced that principle and come out with an expressed view that the right to privacy is a fundamental right. That signals our respect for human freedom and democratic institutions.   

Let me go in detail on what is happening in the United States these days. There is a clamour for making privacy of the individual tighter. Due to outdated laws, technology users are less assured of privacy protection, which is eroding trust in technology platforms such as cloud computing. However, U.S. law enforcement is pleading for accessing data anywhere in the world in the course of its investigations. However, the current law does not adequately define how data can be accessed overseas. The U.S. accessing data can create conflicts with the laws of other nations.

In the Indian context, there have been different shades of public opinion expressed during the recent hearing in the Supreme Court. It will be a lengthy exercise to mention all the debates and opinions expressed. Let me limit myself to a few:

Senior advocate Gopal Subramanium, while initiating the proceedings on the first day of the hearing on the issue of right to privacy before the nine-judge bench headed by Chief Justice J.S. Khehar, said, “Now can liberty be at all experienced without privacy? Can liberty be exercised without privacy at last with regard to all the Fundamental Rights of the Constitution?” Subramanium referred to the Preamble drawing attention of the court to the words “Democratic” and “Republic” and said that both words had suppressed the meaning of liberty of an individual as reported by Live Law. However, the Central Government submitted to the Bench that the right to privacy is a wholly qualified right and not an absolute right since it covers various aspects of the right to life and liberty. 

Now, let us look at the historic judgment and what it portends. Experts say the judgement has two crucial components. The first is doctrinal.  Article 14, which guarantees equality before the law, ensures that state laws cannot be arbitrary in nature or application. They must be reasonable. Article 21 protects life and personal liberty. Without the reasonableness guaranteed by Article 14 to test that procedure, any encroachment into privacy will be arbitrary. Its second component – the philosophical – goes much further. As one learned judge in the bench pointed out, Aristotle distinguished the public sphere of political life – the polis – from the personal sphere. John Stuart Mill made the same distinction in more absolute terms and limited state power to the public sphere. This distinction cannot exist without the right to privacy. When the state has the right to intrude where it will in a citizen’s life, there can be no effective personal sphere. The judgment also sketches out the evolution of the concepts of human dignity and the right to life, both guaranteed by the Constitution. When a citizen cannot draw a boundary between the state and his personal life, dignity is manifestly impossible. 

This judgment, comprehensive and far-reaching, is bound to raise questions as well. The litigation against the Aadhaar programme is still pending in a separate case, but this judgment is bound to bolster it, hampering the benefits the programme can deliver. There are far-ranging implications for digital business models, as well – and, more broadly, for the knowledge economy.  The bench’s observations on this front, such as a proposed outline for informational privacy, do not quite take the rapidly-evolving nature of the digital economy into account.

In conclusion, let me be candid in my observations. Undoubtedly, the unanimous decision of the honorable Supreme Court is a trend-ssetter in many respects. It has told every citizen that they can protect their privacy, subject to limitations laid down in the Constitution, such as reasonableness, public order and morality.

 What is reasonableness in a globalized world where the commercial transactions and businesses are incrementally expanding beyond national boundaries?

The Internet has made communication easier and faster. At the same time, it has expanded the jurisdiction of crime and other offences. While privacy protection is gaining ground, there is an increased demand from the law-enforcing authorities to open the scope of investigations beyond national boundaries. These issues will play out in the coming time. Whatever the outcomes, the judgment must be hailed for establishing an enlightened baseline for the debates to come. 

Tags: Has the Last Word Been Spoken About Privacy, Asoke K Laha President and MD Interra IT, intella IT, asoke k laha, Supreme Court, Supreme Court of India, right to privacy, Aadhaar card, aadhar card issue in supreme court, PIPEDA, Personal Information Protection and Electronic Documentation Act, Senior advocate Gopal Subramanium, Chief Justice of India