"My informed surrender of data to a private player in this digital age is not my surrender of my personal data to all," senior advocate Sajan Poovayya replies

If 99% of citizens are "unconcerned" about sharing personal data with private players like Apple, how is it qualitatively different if the State has the same information, Supreme Court judge, Justice D.Y. Chandrachud, asked on Thursday.

"Most citizens are unconcerned about where or how their personal data is used. You say there are 35 crore Internet users and 18 crore telephone users, but 99% of people are not concerned... When you operate your iPad with your thumbprint, your data is public and there it is..." Justice Chandrachud, who is part of the Chief Justice of India J.S. Khehar-led nine-judge Bench, orally observed.

"The moment you want to travel from Mumbai to Delhi, you will get 100 suggestions. Your private and personal data is in private hands, so is there anything qualitatively different when the State has it? You have surrendered your personal life to private parties, but here we are saying that State should be restricted from having it," Justice Chandrachud addressed senior advocate Sajan Poovayya, appearing for the petitioners.

The questions from the Bench came on the second day of the hearing on the reference whether right to privacy is a inviolable fundamental right under the Constitution.

The final view of the nine-judge Bench will be a core factor before a five-judge Constitution Bench, which is waiting to decide whether the Aadhaar scheme is a violation of citizens' right to privacy.

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The queries are significant because over 100 crore people have already parted with their biometric details for Aadhaar cards. The massive Aadhaar enrolments were initially done through private contractors and agencies.

The petitioners have questioned the mammoth exercise; whether the informed consent of the citizens were taken before parting with their personal details and whether there was information given to people about how and where their personal data would be used. Finally, the government had not specified then in a statutory law, where the data would be protectively stored.

Answering Justice Chandrachud about the "unconcerned" citizen, Mr. Poovayya said hat even if one citizen was aware and concerned about how, where and who uses his personal data, it is an obligation under the Constitution to protect his dignity and privacy.

"Right to privacy does not stand on the pedestal of secrecy, it holds forth from the pedestal of dignity," he submitted.

"Apple even has watches monitoring my heartbeat. My informed surrender of data to a private player in this digital age is not my surrender of my personal data to all. If this private player takes my data and gives it to all on the Internet, then I can sue him for breach of contract. But if I give it to the State, where are the corresponding restrictions and deterrents" Mr. Poovayya asked the court.

He submitted that parting of personal information to a private player is for a specific limited purpose. "Again, can you [Supreme Court] say that just because I put my information in the public domain, I have no right to further assert my right to privacy," asked Mr. Poovayya.

He said the very apprehension that the State is "watching" chills the citizens' rights.

"Unlimited power of the government to collect, assemble, analyse, profile and use my personal data, chills me. That is, even if the State does not do so... But again, I may be a favourite of the State now, but they can use my personal data against me if I ever cross them years later," he submitted.

He said "no reasonable expectation of privacy is ill-suited in a digital age."

At one point, the court asked whether the petitioners objected to the State collecting personal data for documents like passports or to fight terror activities.

"Nobody here is saying that the State's hands should be tied on terror activities. What we are saying is that data should be collected as per law and pass the muster of Article 21 [right to life and dignity]," Mr. Poovayya replied.

"But 80% of the Internet is anyway dark web," Justice S.A. Bobde remarked.

"Any State which acts beyond regulations will move towards dark web. Russian proxy websites thrive because the State backs them," Mr. Poovayya responded.

Here, Justice Bobde, in an apparent reference to data collection drives for Aadhaar enrolment, said, "but 90% of the data is already collected."

"Yes. But where is it kept? What if my personal data floats around on the Internet and even enter the dark web? There must be some pre-conditions levied on the State to protect the data... if they don't have the wherewithal to do it, they should not have taken my personal data from me," Mr. Poovayya said.

He said like how we (the State) protect our homeland to the last breath and the last drop of blood, we should also protect the identities and dignity of our digital citizens.

Privacy is the edifice for protecting other rights, he submitted.

"If your lordships had sat in the same combination years ago and held that privacy is a fundamental right, will they [the government] have gone ahead and collected biometric details from citizens in the first place?" the senior lawyer asked the court.