Data is not oil, it is power

The Supreme Court in deciding the constitutional basis of privacy is adjudicating individual liberty

About thirty years ago, Oleum gas leaked from the factory of Shriram Foods and Fertilizers triggering the constitutional development of environmental law by the Supreme Court of India. The escape of the noxious gas affected the health of a large number of persons around the west delhi area, even resulting in a death. Coming shortly after the Bhopal Gas Leak Tragedy, the Supreme Court started on a path of judicial innovation to craft constitutional doctrines which would safeguard human life and the environment.

Barbara Baldi, Untitled (2013).

The court permitted representative actions when it treated postcards and letters as petitions and created substantive principles such as polluter pays and sustainable development. While much of the work of the Supreme Court has been taken over by the National Green Tribunal, environmental law continues to negotiate the challenges of industrialisation. A similar moment has fallen upon the Court when it has been called on to rule on the constitutional right to privacy.

But what is privacy ? Privacy is an internationally recognised human right protected by law in almost all democracies. Think of privacy as a foundation that allows a person to build a house to attain a sense of freedom — from the eyes of society and the hands of the government. Privacy limits the amount of interference in a person’s ability to take decisions over different aspects of their lives. As eloquently put by Gopal Subramanium during the course of his submissions to the Supreme Court, “privacy is liberty itself”.

A 40 year position of law disputed

The Indian Constitution is marvel which has established a stable democratic government since Independence. It has a chapter on fundamental rights that have safeguarded citizens from state excesses. Though these claims may seem lofty, subject to criticism due to inconsistent application, they stand in stand in contrast to the complete absence of any express right or protection afforded for privacy. There is no definite reason for the non-inclusion of privacy as a fundamental right in the Constitution of India. However, the omission of such express language by itself is not a credible basis to deny the existence of privacy.

For any meaningful basis to a constitutional text, a court has to interpret not only its words but its objectives and values. Hence the Supreme Court of India recognised the fundamental right to privacy in the case of Gobind v. State of Madhya Pradesh (1975) 2 SCC 148 when it held that,

“14. Subha Rao, J. writing for the minority [in the Kharak Singh case], was of the opinion that the word “liberty” in Article 21 was comprehensive enough to include privacy also. He said that although it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the right is an essential ingredient of personal liberty…”.

For close to 40 years an unbroken line of Supreme Court and High Court decisions linked privacy to the spatial protection of our bedrooms, telephone tapping, individual choices of diet and sexuality, even informational determination such as the choice to disclose a medical condition. Running through this list, applying it to our own lives we can readily recognise that any meaningful human existence requires independence in thought and action which is protected by privacy.

The development of the constitutional law of privacy would have continued unabated but for a technical dispute raised by the Union Government in August 2015. During the hearing of the Aadhaar petitions, it contested that existence of the fundamental right to privacy stating that the numerical strength of judges in the Gobind case was smaller than earlier decisions of the Court which reached the opposite conclusion.

This caused a constitutional reference for which a bench of nine judges was constituted in July 2017. It is relevant to consider that during the period of almost two years, from when the constitutional reference was made (August 11, 2015) till when it was first heard (July 19, 2017), the Union Government and the UIDAI expanded the Aadhaar program in violation of the spirit, if not the letter of court orders and left no chance to coerce enrollment and use. This cynical stratagem is explained at length in an Indian Express piece co-authored by me, linked below.

The future of the privacy right

During the case hearings, the status of privacy being central to existence in an information society has been a question often engaged by the Court. Technology and data have been a parable to seek answers on power and control.

Barbara Baldi, Untitled (2013).

Few decades ago industrialisation promised a social and economic panacea. Today the same religious status is prescribed to technology. While technological innovation continues to facilitate access to knowledge and communication it has not been without concern. The most immediate of them is the ability of each point of communication generating vast quantities of personal data. Gathered every second, beyond any reasonable conception of informed consent or control of a user.

It is a often quoted remark that data is the new oil. Being extracted, processed, stored and exploited. But this is without safeguards or any effective remedy. What is more worrying is the ability of modern technology to track smaller amounts of information about information, popularly referred to as meta data. These help build detailed character profiles and exercise constant surveillance undermining a person’s ability for meaningful thought and action. It is a form of unaccountable power that enforces conformity and even results in a denial of services. These dangers if unregulated will only increase in time. They become immediate when the data controller is the government, that without check, uses personal data to deny citizens access to bank accounts, business registrations, primary education, mobile phones, ration entitlements, health care etc. — reducing people to an animal existence.

The scale of use of personal data is matched by the complexity of the constitutional exercise before the Supreme Court. The right to privacy case requires the court to not only seize the concerns of today but also gaze into the future. Courts are more comfortable tracing precedent and proceed with caution to paths of incremental change. But this moment before the court requires it to assert courage due to the seminal importance of the issue it faces. It is called on to craft a privacy right that is firmly anchored to constitutional principles. A right that recognises any meaningful entitlement will require flexibility — as interference with individual autonomy will continue to move far beyond the spatial metaphor of a man’s house being his castle. This requires the ability of smaller benches of the Supreme Court to link the privacy right to rights of life, equality, expression, property, identity even religion.

The reasoning of the Supreme Court runs a further risk of containing limitations to prescribe the privacy right. While reasonability is a requirement of any doctrinal design for privacy, care needs to taken that such restrictions do not subsume the right. Any special limitation for privacy may undermine it for future generations. Hence any specific “balancing” requirement or test for privacy may compromise to an immediate need, such as saving the ostensible social security benefits of Aadhaar, but will provide more restrictive if not unpredictable judicial results in time. The Court’s decision has to be blind of it’s subsequent application to Aadhaar’s constitutionality however it may fall. This danger is alerted by the opinion of Justice Oliver Wendell Holmes in Northern Securities Co. v. United States, 193 U.S. 197, 400–401 (1904) when he warns, “[g]reat cases like hard cases make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.

Such a complex negotiation may become easier if the Court permits the development of the privacy case by case, permitting flexibility to benches of the court to apply and mould the decision in its application. Such a result is possible if the Supreme Court focuses on constitutional values that protect individuals, as it did during the first wave of environmental litigation stating that:

Whenever a new advance is made in the field of human rights, apprehension is always expressed by the status quosits that it will create enormous difficulties in the way of smooth functioning of the system and affect its stability…Such apprehension expressed by those who may be affected by any new and innovative expansion of human rights need not deter the Court from widening the scope of human rights and expanding their reach ambit…But we do not propose to decide finally at the present stage whether a private corporation like Shriram would fall within the scope and ambit of Article 12, because we have not had sufficient time to consider and reflect on this question in depth. The hearing of this case before us concluded only on 15th December 1986 and we are called upon to deliver our judgment within a period of four days, on 19th December 1986. We are therefore of the view that this is not a question on which we must make any definite pronouncement at this stage. But we would leave it for a proper and detailed consideration at a later stage if it becomes necessary to do so.

[M.C. Mehta v. Union of India (1987) 1 SCC 396 (Para 30, Pg. 418)]

One notices in the above-quoted judgement the court fearlessly asserts human rights and displays modesty leaving questions open. Judicial courage tempered with humility are qualities which would be well served in the right to privacy case. One look forwards to a well-reasoned judgement that maintains individual liberty standing the test of time.

An edited version of this post has been published in Business Standard.

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