Privacy by choice

Govt must take a clear stand on the right to privacy

A nine-judge Bench of the Supreme Court is hearing a case to establish whether the so-called right to privacy is a fundamental right. This is in response to a petition claiming that the collection and sharing of biometric information, as required under the Aadhaar scheme, is a breach of an individual’s “fundamental” right to privacy. At present, however, this Bench, which includes the chief justice as well, is not entertaining specific queries about the use of Aadhaar or the possibility of privacy infringement under other circumstances, for example, data collected by social media firms such as Facebook or data mapping an individual’s movements through the use of a global positioning system. That is because without clarity on whether privacy is a fundamental right, it will be difficult to negotiate the innumerable dilemmas that are being thrown up almost daily by governments trying to roll out welfare schemes (and collecting data in the process) and private companies trying to make money out of the colossal amounts of data they collect. 

But the early evidence from the court case, which has seen the first round of assertions, has only complicated the matter. Attorney General K K Venugopal has argued the government does not consider the right to privacy a “fundamental” right. This is an odd starting position because in another case before the apex court, popularly known as the WhatsApp case, the government had argued that the right to privacy was integral to Article 21 of the Constitution, which lays out arguably the most fundamental of all fundamental rights, that is, the right to life and personal liberty. In the WhatsApp case, petitioners challenged the messaging firm’s decision to share data with Facebook, its parent company. In response, the government objected to a private company collecting and sharing users’ data and argued for strong regulation against it. However, when it came to matters relating to the use of Aadhaar, the government’s view on an individual’s right to privacy has been far more lax. 

On his part, the attorney general tackled this inconsistency by arguing that “even if it (right to privacy) is assumed as a fundamental right, it is multifaceted”. In other words, Mr Venugopal asked the court to treat the right to privacy case by case. As such, if the right to privacy, flowing out of an individual’s right to personal liberty, is interrupting that individual’s right to life — for instance, when the government uses Aadhaar for improving the lives of the poor — the right to privacy should be suppressed. By extension, in cases where the right to life is not threatened, say, when one exchanges messages over social media, the right to privacy can be upheld. Regardless of what the apex court decides, one element that needs to be underscored is the right of an individual to choose whether or not he wants the state’s help. Moreover, there are many instances, such as the call to make Aadhaar mandatory for filing tax returns, where the state is clearly overreaching. In such cases, citizens should not be forced to give up their choice.