A fundamental right to privacy is only the start
24 August 2017
The Indian Supreme Court's decision to categorise an individual's right to privacy as fundamental is undoubtedly an historic one, but it is also one that marks only the first step in what promises to be a long journey that will, more than a handful of times, face adversaries who will try to take advantage of it's being ‘subject to reasonable restrictions’ while completely overlooking the fact that it is fundamental.
Privacy should be absolute so long as an individual is identifiable and can be associated with their data by anyone but that individual. Restrictions against the right to privacy should only be imposed in cases where an individual's data is collected and/or used anonymously and when data can in no way be used to work backwards and identify said individual. This is particularly useful for statistics and analysis is already standard practice, but this too is usually done only after obtaining a user's permission.
Backdoors are never a good idea
By leaving the idea of a fundamental right to privacy 'subject to restrictions' and without clearly specifying a framework for those restrictions, the Supreme Court has made the mistake of leaving open a backdoor for misinterpretations of this ruling and the current BJP government is undoubtedly planning to take advantage of it. After all a law is only as serviceable as its definition is crystal clear.
All this points to a larger problem: our constitution is up-to-date in terms of the 1990s and has failed to keep up with technological modernity. There are no solid foundations in place for any sort of nation-wide digital architecture, and the frail ones that exist are as good as absent. It is hard to fathom what government in its right mind would force technology on its people without first establishing a solid digital security and privacy law governing, if nothing else, large-scale digital infrastructures. Infosys boss Nandan Nilekani said as much in an interview a few months ago.
Unfortunately it comes as no surprise then that rumours are now afloat that the CIA has access to India's entire Aadhar database. No less than WikiLeaks has hinted at this, although the government has denied it. This would be a good time to remember that governments have been shamefully wrong in the past, and that Aadhar biometric kits are produced by Cross Match, a private firm undoubtedly with its own interests. Of course, nothing is proven at this point but one might say where there is smoke there is a blaze.
India's populist, right-wing BJP-led government, which was already of the view that Indians do not have a fundamental right to privacy – and even told the Supreme Court this last year – took the most electorally convenient stance possible and supported the ruling, even going so far as to claim they never said otherwise. In all fairness, though, it was not a party member but the Attorney General who said privacy was not intended to be a fundamental right pointing to a verdict from the 1950s. Yet it is comical that a 1950s verdict was argued as the basis against passing a ruling on what can only be described as a modern concern. The 1950s is about half-a-century shy of anything close to modernity and a lot has changed since then e.g. the digital web that the ruling government claims to be so fond of.
Following the Supreme Court's ruling, BJP's boss Amit Shah published a rather poor article on his website where he promptly blamed Congress for everything bad related to privacy, although he seemed unclear himself about what exactly he was blaming them for. You can read the article yourself but beware: Mr Shah quotes multiple ‘Honourable judges’ without naming a single one.
Privacy has nothing to do with services
Last month NDTV reported that the Centre's lawyer K.K. Venugopal said in court, 'Don't apply US judgement to privacy. India has people below poverty line and the middle class ... So that needs to be considered'. This brazenly fact-free statement needs to be put into context: saying India has people below the poverty line implies the US does not, so consider current statistics that peg India's population living below the poverty line as around 22% and the United States’ as roughly 15%. Given that one is classified as a developing country and the other as a developed one the closeness of these percentages is surprising – and it is a clear indication that basic privacy laws thriving in the US have little to do with the poverty line.
The only reason why India has more people living below the poverty line is because it has more people in the first place. Raw numbers are therefore not a sound argument, percentages are. The BJP’s marketing move (the same rigorous advertising that got them elected) this time round seems to be to tie privacy to services. Saying that the poor are being denied various perks and services from the government because they have a right to privacy speaks more of the government’s incapability to offer effective service to its people than anything else. You do not have to peep through someone’s keyhole to check if they are doing fine. As far as blaming privacy laws for government services that sometimes fail to reach their intended target goes (and as much as I dislike drawing comparisons with another country) America’s debate between privacy and national security seems like a more plausible one.
Indeed it is hard to see why a government would not want its people to have a right of privacy. Could it be to fight anti-social movements? Could it be to track users and attempt to prevent terrorism? Could it be to spy on citizens and curb any movements against the interests of certain political parties? The interesting thing about such arguments is that all three of these possibilities are equally likely and therein lies the argument for absolute privacy: you cannot go wrong with absolute privacy, and giving up privacy guarantees neither efficiency nor security.
Most European governments had some information or other about people who committed acts of terrorism over the last couple of years and yet none of those attacks were prevented. There is little to show that snooping on people makes society secure any more than frisking and metal-detecting before entering a building.
As far as offering government services goes there are ways of keeping track of people receiving services without invading their privacy: just ask any school anywhere – all students get their share of things all the time without a single one giving up their privacy for it. Yes, the number of kids in one school may be small when compared to the country but what about all schools in the country? There are more kids in school than there are poor people in this country (24% of the country is in school as opposed to 22% who are poor) who are all getting their share of things in their school same as every other kid around them.
In the end, what prevents the school-like model (of increased ratio of rationing officials to receivers) from being employed across the country to ensure that people receive the services they deserve? Indeed unless the BJP has its own ulterior motives, such as snooping on and keeping close track of everything people do in order to de-secularise India and make it a Hindu nationalist country, they would do well not to take advantage of there being undefined 'restrictions' to our fundamental right to privacy. In fact, if the idea of privacy is lost on them they should probably just take a week off from over-governance and read Nineteen Eighty-Four.