As a nine-judge Constitution bench in the Supreme Court decides whether right to privacy is a basic right of citizens, economist and social scientist Reetika Khera speaks to Ranjita Ganesan on how this relates to the Aadhaar debate and social media. Edited excerpts:
It is being said in the Supreme Court that the right to privacy is not absolute. What would this mean for the Aadhaar debate?
The government has been speaking in two tongues on the right to privacy for a long time. The latest example of this is the same government that is challenging whether it is fundamental right in the Aadhaar matter, in the WhatsApp case, is saying that privacy is integral to Article 21. At least two ministers of this government have expressed their commitment to upholding the right to privacy, yet in the Supreme Court now, they argue against this right. In their submissions to the Supreme Court in the Aadhaar matter, the government has also said so. When the BJP was in the opposition, it was among the biggest critics of the Aadhaar project, and it has never clarified why its stance changed after coming to power. On the other hand, the Congress party too has a lot to explain (especially its rush in implementing the Aadhaar project, without following due process). This magnifies the responsibility of the Supreme Court in the discussion on the fundamental right to privacy as well as the existence of the Aadhaar project.
Do you believe it is important to recognise the law on right to privacy as fundamental, and why?
The right to privacy is inherent in Articles 14, 19 and 21. It is a prerequisite for a good democracy. Privacy is also essential to a life of dignity (this is also one of the main grounds of opposition from Dalit groups and those opposing Section 377). What is crucial therefore, is for the Supreme Court to say that the right to privacy is indeed a fundamental right. As senior counsel Shyam Divan said in the court, recognising it as fundamental is a stronger protection (than common law), which gives greater recourse to us as citizens but will also act as a control on state power. The court may then add that the jurisprudence developed in India since the Gobind case have no reason to be interfered with. Going ahead, it may examine questions on the violation of privacy, on a case by case basis (including in the Aadhaar project).
Some questions that the bench raised for petitioners were, what should be the width and contours of right to privacy? What should be the reasonable restrictions attached to it? What is your view on this?
Since the Gobind case, there are 40 cases in Indian jurisprudence that have upheld the right to privacy. I don’t think the petitioners are arguing that the right to privacy is absolute. For example, if I am seeking a loan, I cannot invoke the right to privacy and not reveal any financial information to the bank. One of the judges made a stray remark in this limited context about right to privacy not being absolute. Unfortunately, that was picked up as a headline by several major news outlets.
Several developed countries decided against identification systems to protect privacy. Given how far along the process we are here in India, does it seem like a re-examination can happen?
There are other countries too where Aadhaar like programmes were envisaged and rejected. This includes, the United Kingdom, where enrolment had started. Yet, when the Conservative government scrapped the project, all the data was physically destroyed. The good news is that the Aadhaar project is reversible. For example, it would only require deleting the Aadhaar field from all the databases where it has been linked, and of course, deleting the data stored in the central repository.
An argument people often make is that social media also has access to private information. How is such mining by private players distinct from that by the state?
It is true that we are profiled , and our data is already being monetised (Google and Facebook are the best examples). That we are already profiled and surveilled doesn’t justify more non-consensual (in the sense of informed consent) information sharing and profiling. There are four reasons for this. One, none of the existing technologies are all-encompassing in the same way as the Aadhaar project. Two, there is a genuine element of consent with many of these — example, Facebook may be a great surveillance tool, but it can only know about my banking transactions or travel, if I share that information there. Three, there are technologies such as encryption and Virtual Private Network to protect ourselves (partially at least) from such surveillance. Four, to say that because we are already being surveilled, we should not be questioning the Aadhaar project, is akin to saying that since we have been robbed in the past, we should sleep with our doors and windows open. Further, what the applications of Aadhaar are doing is to deny some people their existing rights (example, ration under the National Food Security Act).
What are your expectations regarding the outcomes of the hearing, when it continues next week?
I suspect that the government will indulge in scaremongering in the court, saying we need to restrain the right on national security grounds (probably invoke terrorist attacks or some such drama). I believe that recognising the right to privacy as a fundamental right is key to preserving Indian democracy. I don’t think the Supreme Court will let us down.
July 28, 2017 at 4:17 pm
The interview raises valuable points. Right to privacy has been a crucial issue since the linkage started. The court has it’s task cut out and deliver a reasonable appreciable verdict