Privacy Is A Fundamental Right; And So Is Property. Government Needs To Re-Examine Its Stand Before SC

The Supreme Court has done well to create a nine-judge constitutional bench to examine whether privacy is a citizen’s fundamental right or not. The issue came up in the context of various challenges to the Aadhaar unique ID, which collects residents’ biometrics, and its mandatory extension to a whole lot of uses, from linking PAN cards to validating telecom user data.

At yesterday’s (18 July) hearing in the Aadhaar case, the government side continued to argue that privacy is not a fundamental right, while the five-judge bench hearing the Aadhaar case demurred. While two past judgments – one by an eight-judge bench in 1954 and another by a six-judge bench in 1962 – did not accept privacy as a fundamental right, those judgments came so far back in our post-Independence history that they are irrelevant to current concerns. Today, we are faced with massive privacy invasions not only by states, but private parties too.

The government’s arguments, made by the previous attorney-general Mukul Rohatgi, and repeated by his successor, K K Venugopal, refer to the Constitution which makes no mention of the idea. Venugopal said: “Our Constitution has not specifically included any such right (to privacy)… This would have been on the minds of our Constitution-makers. They consciously omitted including such a right.”

But this argument does not wash for privacy was not a big concern in the late forties when the Constitution was being drafted. Today it is.

The reality is that technology allows for a gigantic accumulation of private data in the hands of large corporations like Google, Amazon, Facebook, Apple and other smartphone companies, banks, governments, and even ride-sharing companies like Uber and Ola. The privacy issue should thus be delinked from Aadhaar, for the problem is larger than just the use or abuse of our unique ID system.

Consider just one threat, given the current standoff with China in Doklam: Chinese mobile phones, laptops, and electronic gadgets are beginning to dominate the mass end of the Indian market, and creeping steadily upmarket. Since cellphones collect a lot of your personal data, including fingerprints, and these are often saved in giant servers held abroad, isn’t the availability of so much private data in the hands of Chinese or Korean companies a huge security risk for India? And with the arrival of IoT, the internet of things, even information of what’s in your refrigerator will be available to private parties. Consider what will happen if criminals learn whether you have stored beef in your refrigerator or paneer?

Aadhaar man Nandan Nilekani has also flagged concerns over data being aggregated in a few big platforms as a huge risk and that even while data can be shared for beneficial purposes, it ultimately belongs to the citizen. The Times of India quotes him as saying that “a big part of public policy all over the world is going to be how we enforce a policy regime where data is open, shared and it's portable. The data is yours and you have the right to get it back. In India, we don't have anything like a policy yet.”

Unlike Aadhaar data, which is being used for public purposes and is shared with businesses to help them grow customers faster, the data in the hands of the Googles and Amazons of the world is private, and no one knows how it is being used. Not only that, when foreign governments gather biometric data from visa-seekers, or, for that matter, when Indian banks and financial institutions are forced to share data on their customers to comply with US Fatca regulations, the Indian government has almost no control over the use of its own citizens’ private information.

So, the government has not covered itself with glory by claiming that privacy is not a fundamental right. At best it should have said that it is indeed a fundamental right, even though it isn’t written into the Constitution, and added a caveat: just as the right to free speech is hemmed in by reasonable restrictions, so too the right to privacy should be.

Just because something is not in the Constitution, it does not mean it is not relevant today.

A reverse case relates to property rights, which was indeed written into the original Constitution, but went down from being a fundamental right to something that is today merely a legal right. When big landowners ruled the roast, property was seen as a fundamental right and found a place in the Constitution; but land-hungry governments in the past saw this as an impediment to development and exiled it from the Constitution. This is, of course, wrong. Property rights are not just about guarding the ownership interests of the big landed kahuna, but even about protecting the poor farmer who has often been dispossessed of his meagre holdings at low compensation levels using British-era land acquisition laws.

Instead of remedying this by restoring property as a fundamental right, the United Progressive Alliance government went in for a market-distorting and corruption-enhancing version of the Land Acquisition Act, where land acquisition has been made too costly by mandating the payment of four times the market price in rural areas and twice in urban areas.

So let’s be clear: there is a strong case for putting privacy laws into the Constitution, just as there is a case for making property rights (with limits) also fundamental.

The Supreme Court is on the right track, but not the government. To protect its Aadhaar extension policies, the government does not have to argue against privacy.