The Supreme Court must define the contours of the right to privacy in a way that doesn’t undo it

The government has pushed the Supreme Court into a dangerous exercise: drawing the boundaries of the right to privacy. It has set the bar so low that almost any ruling by the Supreme Court will be celebrated if it pays lip service to the right to privacy. However, as history has shown us, badly drawn contours will permit the government to exploit our rights for decades. Public debate needs to rise above the government’s low bar and engage with the more nuanced questions.

This piece begins with addressing the argument that the right to privacy is an alien western idea, and explains why the right to privacy is necessary in India. It then addresses the government’s suggestion that the right to privacy can be replaced by a data protection act, by detailing how a data protection statute is much weaker than the fundamental right to privacy. It then addresses the third popular and fallacious question of why we need a right against our own government when we are happy to share our private data with foreign Web-based platforms.

India and the right to privacy

After dispensing with the questions that are distracting citizens from the real issue in this case, this piece discusses the contours of the right to privacy. It argues that they must be reinforced on a case-by-case basis in this unpredictable information age. Anything less will render the increasingly critical human right to privacy meaningless.

It is easy in a crowded country, where the feudal family structure prevails, to argue that we do not believe in privacy. This is not true. Indian cultural norms have their unique ways of protecting privacy. Additionally, when we became a democracy, we adopted certain constitutional safeguards. These safeguards include many rights derided as alien western imports — the rights to speech, equality, liberty and privacy. To shrug them off would be to shrug off democracy.

We are not the only nation to struggle with what seems like an unfamiliar human right to privacy. Although elements of privacy, such as restrictions on the searching of homes, were in national constitutions, the right to privacy as a whole was not articulated in them. This articulation of right was recognised as an international human right in the Universal Declaration of Human Rights before it found its way to the national level. If the phrase is new to us, it is new to everyone. Democracies have adopted it because it is essential to preserving the balance of power between governments and citizens, as governments access information technology and big data.

The government has offered to enact a data protection act in lieu of the right to privacy. This has unleashed the dangerous idea that a data protection statute is a substitute for a fundamental right to privacy.

Why it’s a fundamental right

A data protection statute is flimsy in comparison to a fundamental right to privacy. It can be repealed or amended, and other laws can be written to prevail over it. The government can exempt itself so that we have rights against private companies but not against the government. In contrast, the fundamental right to privacy cannot be taken away or undermined by the government: every law and every action threatening that right can be challenged before the judiciary. If we have a strong fundamental right, the government will never be able to give itself the power to go through our emails, search engine history, cupboards, pockets or texts without having to justify its intrusions and searches to the judiciary.

We have never needed a fundamental right to privacy more. The government is monitoring citizens closely, interlinking databases from transport and bank accounts to school enrolment and mobile phone connections. Recent news suggests that it will be adding data from our social media accounts to this. The consequences are terrifying. Interlinked databases can lead to comprehensive discrimination such that HIV-positive people, people with mental illness, terminal illnesses, divorces or marginalised community backgrounds are denied jobs, homes and medical care. At its worst, unrestricted monitoring of citizens can lead to identification and suppression of dissent in a manner reminiscent of Stasi Germany. With no independent information and no dissent, there is no democracy.

The argument that government access to our personal information is justified because Facebook has it anyway is fallacious. Neither entity should have unrestricted access to this information. Governments are currently far more powerful than Facebook, with their control of the police, the army and other instruments of force, which is why human rights protect us from government power. However as online platforms amass power and influence, they pose a potential threat to human rights. Work is being done on ways to hold them also accountable.

Contours of privacy

The potential contours of the right to privacy are really the critical question in the case before the Supreme Court. The court must guard against upholding the right but defining its contours in a way that undoes it. This was the court’s big mistake in its phone-tapping judgment, where it created such an ineffective oversight mechanism that it might as well have permitted the government to tap phones at will.

There is no need to create new limits for the right to privacy if the Supreme Court rules that it may be read into the rights to life, liberty and speech as it has in the past, or read into any other fundamental right in the future. The judiciary can then continue applying the existing grounds of restriction from the Constitution.

If the Supreme Court is to rule in a truly meaningful way this time, it will need to define the right to privacy in a manner that makes it difficult to undermine. It can outline the core of this right with examples, to ensure that privacy jurisprudence moves forward, not backwards. It can articulate clearly what cannot be excluded from the purview of the right to privacy, such as surveillance of communication, access to personal data, publication of personal information and the interlinking of databases of personal information.

But most importantly, the court can acknowledge that it is impossible for judges in 2017 to comprehend the future threats to the right to privacy that technology will invent; it can give future Supreme Court judges the power to use its privacy principles to adjudicate these cases.

Future judges will be confronted with the Internet of Things, big data, bio-hacking, algorithms and potentially even artificial intelligence, and a country in which a citizen is monitored down to her heartbeat. Technology is already able to predict our moods, political leanings, retail preferences, relationships and medical condition with eerie efficiency. This will only escalate. If we, the citizens of India, want to hold on to our power and agency, we will need the right to privacy to guard against this invasiveness.

Chinmayi Arun is Executive Director, Centre for Communication Governance at National Law University, Delhi, and Faculty Associate of the Berkman Centre at Harvard University