A basic right is in danger

The post originally appeared in The Hindu on 31st July 2015.

The Attorney General’s argument questioning the right of Indians to privacy is wrong on two counts. But worse, it goes against the interests of the people on every count.

“While opinions may vary about Aadhar, the government is expected to act in the best interests of the people.” Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

The last ten days have spelt dark times for the right to privacy. On one hand, the DNA Profiling Bill, which may result in a database of sensitive personal data with little to prevent its misuse, is being tabled in Parliament. On the other hand, the Attorney General took a shocking position in the Supreme Court of disputing the very existence of the right to privacy in the Aadhar case.

Undermining decades of evolution of this right through Supreme Court judgments, Mukul Rohatgi argued that it is necessary to put together a constitutional bench to determine whether the citizens of India have a right to privacy.

He is in the wrong for two reasons. The first is technical: he is mistaken in his assertion that M.P. Sharma v Satish Chandra and Kharak Singh v. the State of U.P. created legal doctrine that is no constitutional right to privacy. The second reason is political. A lawyer holding the Attorney General’s office should consider the appropriateness of using that office and public resources when denying that Indian citizens have privacy rights, which are universally recognised human rights. This is all quite apart from the fact that India has ratified the International Covenant on Civil and Political Rights, which unequivocally supports the existence of the right to privacy. The United Nations has gone so far as to create a Special Rapporteur on the right to privacy this year. In the context of US surveillance of its citizens, the Indian government has acknowledged the existence of the right to privacy.

In the Constitution

The two decisions that Mr. Rohatgi references did not raise questions about the right to privacy as a whole. Both confined themselves to the limited question of whether principles mirroring the US Fourth Amendment may be read into the Indian Constitution, which is only one element of the right to privacy. The M.P. Sharma case did this while ascertaining if there are any constitutional limitations to the government’s search and seizure of people’s homes, persons and effects; and the Kharak Singh case did this in the context of physical surveillance of ‘history sheeters’.

In M.P. Sharma, the judgment states, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a totally different fundamental right by some process of strained construction” (emphasis added). This makes it clear that it is not the right to privacy as a whole that is being referred to. The American Fourth Amendment pertains to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, not to the right of privacy in its entirety.

The M.P. Sharma judgment goes further to say, “It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate… When such judicial function is interposed between the individual and the officer’s authority for search, no circumvention thereby of the fundamental right is to be assumed.” This makes it evident that the court desisted from intervening because it saw the requirement of a Magistrate’s order as safeguard enough.

Similarly, although the judgment in Kharak Singh contains the sentence with the ominous beginning “as already pointed out, the right of privacy is not a guaranteed right under our Constitution”, this sentence cannot be taken out of context. The ‘already pointed out’ refers to an earlier portion of the same judgment in which the court quotes the U.S. Fourth Amendment, and then declares that our Constitution does not confer any ‘like constitutional guarantee’. This makes it clear that it is the Fourth Amendment text specifically that the court was referring to.

The court also belied its own position by finding that unauthorised intrusion into a person’s home violates the common law principle of “every man’s house is his castle”. The judgment explicitly takes the position that Article 21 is a repository for residual personal liberty rights, leaving it open for future reading of such rights into Article 21.

It is apparent that the two cases do not rule out a broad constitutional right to privacy. It is almost impossible to consider the right to privacy in its entirety in a single case since it is a bundle of rights including everything from safeguards against unauthorised collection of personal data to restrictions on intrusion into private spaces. The cases that have emerged from the Supreme Court over the years make this apparent.

Different elements of privacy rights have been read into our right to life and our right to free expression. We have a right against untrammelled interception of our communication, and against doctors divulging personal medical information. Long before the Constitution or the Constituent Assembly came into being, the right to privacy of women in purdah was acknowledged by common law, which forbade the building of balconies above their quarters. We do, therefore, have a rich history of enforcing the right. Like many other nations, we called it by different names and have found it within legal and cultural norms unique to India.

It is common for lawyers to use every strategy they can to win cases but the Attorney General is no ordinary lawyer. S/he is a constitutional authority. It is inappropriate for someone of that stature to argue that the people of India do not have a right to privacy. Former Attorney General Niren De was criticised sharply for telling the Supreme Court that it could be helped if the right to life was violated during Emergency. Mr. Rohatgi’s argument is comparable.

This is a democracy, and while opinions may vary about Aadhar, the government is expected to act in the best interests of the people. Here, we have the Attorney General stepping away from arguing that the government’s actions are in the interests of the people to say that the people do not have rights in the first place.

It is not a case of the government’s lawyer arguing for the prevalence of the wider community’s interests over individual rights, or disputing what is in the interests of the majority of citizens. Mr. Rohatgi, on behalf of the Indian government, is making an argument that is blatantly against the rights and interests of all citizens of India.

Interestingly, the argument runs contrary also to the Minister of Communications and Information Technology’s statements recognising citizens’ right to privacy in the context of both US and Indian surveillance.

Time to clarify

This incident is about more than an argument made in court. It is a serious problem if the Union government makes statements that respect privacy and then takes actions that attempt to destroy it. It is also inconsistent for the government to argue internationally that the U.S. has violated Indian citizens’ right to privacy and then to argue before the Supreme Court that Indian citizens do not have the right to privacy.

Under the circumstances, it is necessary for the government to issue a statement clarifying its stand, which I hope will consist of some form of support for citizens’ privacy rights. Once this is clear, perhaps the Attorney General could continue the arguments that take his client’s wishes into account.

A clear statement from the Prime Minister’s office might also enable other ministries to ensure that they embed this right in their policies. This, for example, might have gone a long way in ensuring that cast-iron privacy safeguards were added to the DNA Profiling Bill.

Ignoring the right to privacy will not only affect India’s ‘global image’ more than any critical documentary does, it will also complicate international commercial relations. Who would send their information or employees to a country that disregards its residents’ right to privacy?

Private Censorship and the Tethered Media

DNA newspaper’s removal of Rana Ayyub’s brave piece on Amit Shah with no explanation is shocking. It is reminiscent of the role that media owners played in censoring journalists before publication during the Emergency, prompting L.K. Advani to say, “You were asked to bend, but you crawled.” The promptitude with which some media houses are weeding out political writing that might get them into trouble should make us reconsider the way we think about the freedom of the press. Discussions of press freedom often concentrate on the individual’s right to speak, but may be better served if they also accommodated another perspective – the audience’s right to hear.

It is fortunate that Ayyub’s piece was printed and reached its audience before attempts were made to bury it. Its removal was counterproductive, making DNA’s decision widely visible in what is popularly known as the Streisand Effect. The controversy emerging from DNA’s taking down the piece has generated much wider attention for Ayyub’s article, which is now mirrored on multiple websites, its readership expanding as outrage at its removal ricochets around the Internet.

This incident is hardly the first of its kind. Just weeks ago, news surfaced of Rajdeep Sardesai being pressurized to alter his news channel’s political coverage before the national election.  The Mint reported that the people pressurizing Sardesai wanted a complete blackout of Kejriwal and the Aam Admi party from CNN-IBN’s reportage. Had Sardesai capitulated, significant news of great public interest would have been lost to a large audience. CNN-IBN’s decision would have been chalked down to editorial discretion, and we the public be none the wiser.

Luckily for their audience, Sardesai and Sagarika Ghose quit the channel that they built from scratch instead of compromising their journalistic integrity.  However, the league of editors who choose to crawl remains widespread.  Their decisions are protected by the Indian constitution.

The freedom of press in India only protects the press from the government’s direct attempts to influence it. Both big business and the state have more instruments at their disposal than direct ownership or censorship diktats. These include withdrawal of lucrative advertisements, defamation notices threatening journalists with enormous fines and imprisonment; and sometimes even physical violence. Who can forget how Tehelka magazine’s ‘exposure of large-scale government wrongdoing resulted in the Tehelka’s financiers being persecuted by the Enforcement Directorate, with one of them even being jailed for some time.

The instruments of harassment work best when the legal notices are sent to third party publishers or intermediaries. Unlike the authors who may wish to defend their work or modify it a little to make it suitable for publication, a publishing house or web platform would usually prefer to avoid expensive litigation. Third-party publishers will often remove legitimate content to avoid spending time and money fighting for it.  Pressurising them is a fairly effective way to silence authors and journalists.

Consider the different news outlets and publishing houses that control what reaches us as news or commentary. If they can be forced to bury content, citing editorial discretion, consider what this means for the quality of news that reaches the Indian public. Indira Gandhi understood this weakness of the press, and successfully controlled the Indian media by managing the proprietors.

Although media ownership still remains concentrated in a few hands, the disruptive element offering hope for free public dialogue is the Internet.  The World Wide Web gives journalists access to the public sphere through blogs, small websites and social media. This means that when DNA deletes Rana Ayyub’s article, copies of it are immediately posted in other places.

However online journalism is also vulnerable. Online intermediaries receiving content blocking and take down orders tend to over-comply rather than risk litigation. Like publishers, these intermediaries can easily prevent speakers from reaching their audiences. Consider the volume of information online that is dependent on third parties intermediaries like Rediff, Facebook, WordPress or Twitter. The only thing that keeps the state and big business from easily controlling information flow on the Internet, is that it is difficult to exert cross-border pressure on online intermediaries located outside India.

However, the ease with which most of the mainstream media is controlled makes it easy to construct a bubble of fiction around audiences, leaving them in blissful ignorance how little they really know. Very little recourse is available against the publishers or intermediaries if these private parties censor an author’s content unreasonably.  Unlike state censorship, private censorship is invisible, and is protected by the online and offline intermediaries’ rights to their editorial choices.

Ordinarily, there is nothing wrong with editorial discretion or even with a media house choosing a particular slant to its stories. However, from the audience’s point of view, it is important that the public sphere ends up containing a healthy range of perspectives and interests, with a diversity of content across the media. If news of public significance is regularly filtered out of the public sphere, this affects the state of our democracy. The citizens of this country cannot participate in its governance without access to critical information.

 It is therefore very important to acknowledge the harm caused by private censorship. It endangers the democracy when just a few parties disproportionately control access to the public sphere. We need to think of how to ensure that the voices of journalists and scholars reach their audience. Media freedom is meaningful if considered in the context of the right of the audience, the Indian public, to receive information.