View from India: Right to privacy - yes, indeed

This week, the festive fervour is on, as India braces itself for celebrating Ganesh Chathruthi, an important festival in the Hindu calendar. Customarily homes are being spruced up and gifts are being exchanged. Amidst all the revelry, there’s another reason to rejoice. This time, it’s an historic privacy judgment which has made people euphoric.

On August 24, a nine-judge Constitution bench headed by Chief Justice J S Khehar passed a verdict stating that “right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution”. As per the 547-page judgment, individuals will enjoy the complete right to privacy under the Constitution of India.

What is interesting is that the judgment overruled earlier judgments of the apex court that right to privacy is not protected under the Constitution. Verdicts passed by the eight-judge bench judgment in the M.P. Sharma case in 1950 and the six-judge bench judgment in the Kharak Singh case in 1960 have been overruled by the nine judges.

India Inc welcomes the landmark judgment. “Privacy is a fundamental right. The freedom that was won in 1947 has been enriched and enlarged,” said Congress leader P. Chidambaram in a press statement. Jurists and senior advocates have hailed the verdict as “progressive” and “a basic right.”

Twitter, too, is flooded with celebratory remarks. Former Jammu and Kashmir Chief Minister Omar Abdullah cheered, “I have a right to privacy & it’s a fundamental one. Yeyy.” Senior CPI(M) leader Sitaram Yechury rejoiced and tweeted, “Congratulations to all lawyers, activists, others who fought this govt’s sinister designs to deny Indians their fundamental right to privacy.”

However, such a groundbreaking judgment brings along challenges: certain dimensions like the Aadhaar scheme and the digital world call for attention.

Whether ‘Right to Privacy’ will impact the Aadhaar scheme will depend only when the judgment in its entirety is examined. Aadhaar, which has evolved into the world’s largest biometric ID card programme, is a national identity card and is a government programme that gives a 12-digital identification number to all Indians.

Besides Aadhaar, there could be repercussions felt in the information technology domain. Technocrats are of the opinion that the data-sharing arrangement between WhatsApp and its parent company Facebook is likely to get impacted, as per the Privacy Act. Telecom Regulatory Authority of India (Trai) which has begun to draft a data protection framework may also be affected.

The very manner in which personal data is doled out to institutions and service verticals is a challenge that needs to be looked into. Let’s not forget social media platforms and identity cards in various organisations carry complete profiles of individuals, which by their very nature siphon out information about the person, their tastes and extended family. There’s a treasure trove of information out there.

This leads us to data security and protection. We all know that data is new oil in the digital world, but the question is how much do we reveal about ourselves? Considering we live in a digitised world, there’s all the more imperative to protect our privacy that includes both personal privacy as well as informational privacy. Ideas of privacy need to be redefined.

A segment has been earmarked towards “informational privacy”, which calls for fresh perspective of privacy in the information age. This requires a techno-legal outlook. This should be seen as an opportunity for positive disruption, whereby a basket of tech solutions with legal backing should be made available in order to separate the wheat from the chaff and only give out the required information.

The Supreme Court has given India a private life, but we need to safeguard ourselves against data-mining processes. This requires a balancing act. It’s time for technological and legal experts to step up to the challenge. The ecosystem of data protection needs to be strengthened and reinforced.

The National Association of Software & Service Companies (NASSCOM), the country’s software services industry lobby, and the Data Security Council of India (DSCI) have both welcomed the Supreme Court’s unanimous judgement, declaring ‘Privacy as a Fundamental Right’.

“This landmark judgment will ensure that protection of citizen’s privacy is a cardinal principle in our growing digital economy. Besides, it will enhance citizens’ trust in digital services, a prerequisite for widespread digital adoption. The ruling also significantly boosts India’s attractiveness as a safe destination for global sourcing,” said R. Chandrashekhar, president, NASSCOM.
NASSCOM and DSCI will continue to work with the Government of India in accelerating the enforcement framework. “We have always advocated for a stronger data security regime in the country and this judgement will further reinforce industry efforts and resolve to provide necessary assurance in this regard,” said Rama Vedashree, CEO, DSCI.

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