The Right to Privacy has given us a forceful line of argument against stifling laws, but it needs a strong civic and political culture to work
By Ujwala Uppaluri
This post first appeared in India Today on August 11, 2018
Close on the heels of Independence Day last year, the Supreme Court told us that the Indian Constitution had always guaranteed our right to privacy. While the nine judges who made up the historic right to privacy court were unanimous, Justice S.A. Bobde proposed the only definition of privacy the court ventured in that case: It is the right to choose and to specify backed by cognitive freedom or the assurance of a zone of internal freedom in which to think.
Freedom needs privacy, said the court. It needs the quiet and the shadows. It is only when all Indians can fearlessly choose how they live and who they love that the hopes for freedom and human flourishing with which we began our journey as a democracy in 1947 can be realised. Without the capacity to think, read, write and play on our own and as we like, the freedoms — to express ourselves, to associate, to espouse or reject a religion or even to vote — that we take for granted in our democracy mean very little.
But independent India is not only a democracy; it is also a republic — a free state in which the people are paramount. In the concurring opinions of two judges in the privacy court, there are traces of a view that takes privacy to be intimately connected with our status as a republic.
Justice J. Chelameswar reminded us of the price we paid for the Constitution, which guarantees rights. It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only of their generation but generations to follow. And Justice A.M. Sapre told us that the reference to each individual’s dignity — which the court overwhelmingly agreed was protected by privacy — in the Constitution’s opening lines was an explicit repudiation of what people of this country had inherited from the past.
A LAW FOR ALL
When these two views are taken together with Justice Bobde’s vision of privacy as cognitive freedom and free choice, the conclusion unavoidably is: privacy is the revolutionary idea that every Indian in independent India is entitled to choose her own destiny. Privacy is self-government. Privacy is non-domination — it is our label for the idea that Indians are not subservient to any power. It is swaraj, realised for each one of us who make up the free republic of India.
Today, as we commemorate our independence from the oppression of colonial rule, we must pause to consider the status of the right on which all our freedoms rest.
Declarations of rights are one thing, their realisation is quite another. Swaraj is a work in progress.
Legalising passive euthanasia and affirming the rights of an adult woman to choose her spouse were possible thanks to the Right to Privacy. The decriminalisation of homosexuality — which we have reason to hope for despite recent setbacks — will also likely invoke the right to privacy. The cases against adultery, marital rape and the all-surveilling edifice of Aadhaar lean heavily on the same principle. The declaration of the Right to Privacy has allowed us, as citizens, a renewed and powerful line of argument against bad laws and state action.
Outside the court, we are forced to confront the reality that the right to privacy is only as strong as the civic and political culture in which it must work. The reflexes and default setting of the Indian police and state of today have colonial antecedents. Our numerous intelligence agencies exist and operate in 2018, for the most part, in the same manner they did before 1947 — under a shroud of secrecy, without a duty to seek prior permission or to answer to our representatives in Parliament or the custodians of our rights in the courts for their actions. We, the people, have set no boundaries on their powers; so, we cannot complain when these powerful actors diverge from the roles they ought to play in a healthy democracy.
It is the same story with communications: the colonial legal architecture for intercepting and monitoring our communications endures. The law that exists to address wiretapping is rooted in the Indian Telegraph Act, 1885, and rules framed under it, on the prodding of the Supreme Court, in 1996. They permit wide grounds for surveillance. And by setting out a procedure through which it is hoped that the same arm of government that surveils also checks itself, whatever safeguards exist are rendered illusory and ineffective. Rules formulated under the Information Technology Act, 2000, to regulate our communications online are framed in the same spirit.
There is no denying the fact that surveillance has a role in maintaining peace and stability in democracies like ours. It is a vital weapon in the state’s arsenal against threats to national security and in the investigation of crimes. The problem, rather, is that long-settled defaults are changing, while we do little to understand or correct their effects. The defaults for record-keeping, for example, have shifted from deliberate forgetting to universal and permanent remembering. And with social media, communication that would have been private and transitory is now recorded and publicly visible. So, while a shadowy surveillance edifice turns even more opaque to us, we, the citizens, become ever more exposed to the state. It should be the other way round in a republic worth the name: the state and all those in power must be transparent to citizens, who must be left unmolested in their privacy.
Surveillance and censorship each breed more of the other. Through laws like sedition, which criminalise speech, successive governments have justified policing what we say. Equally, by using the newly proposed measures for social media monitoring, for which the UIDAI (Unique Identification Authority of India) has issued tenders this year, we will find ourselves increasingly fearful and inhibited in expressing ourselves online. A similar, much broader programme, under the aegis of the ministry of information and broadcasting, was withdrawn on August 3 after the Supreme Court agreed to hear the citizen’s case against it, remarking that it seemed a dangerous proposition.
The push towards digital governance and the hasty adoption of technologies before we have fully understood their implications have the effect of creating — and delivering to the State — rich new streams of personal information. As the State blunders along in this act first, think later fashion, our very bodies are becoming sites for extraction of information. Colonial laws like the Identification of Prisoners Act, 1920, specify categories of convicts who must allow their measurements and photographs to be recorded. But even this law requires these records to be destroyed when the convicts are released. Today, under the aegis of Aadhaar, the government systematically collects biometrics of all Indians, defined for the present as photographs, fingerprints and iris scans. On the cards, during this session of Parliament, is a proposed law that will enable DNA profiling.
It should not surprise us that the government chose to argue against the very existence of a constitutional right to privacy in India. This resistance to checks is to be expected of any beneficiary of a large well of power, no matter that it is derived from the very citizens whose interests are ignored. Late last month, a committee of experts under Justice Srikrishna released a report and draft bill that would set the terms for how the state — as well as corporations — treat personal information, including our biometrics. It did so after ignoring calls to include in the panel citizens’ representatives, who were refused access to the deliberations. Today, let us remind ourselves that republics and democracies are fragile, that they are not self-sustaining. The price for the freedoms we, the people, enjoy is constant vigilance and continuous participation in democratic processes. Let’s start with the battle for a data protection law that would be worthy of the name.
Ujwala Uppaluri is a constitutional lawyer and a Fellow at the Centre for Communication Governance at National Law University Delhi