How Private Should The ‘Right To Privacy’ Be? – The Viewpoint Of Himanshu Aggarwal

Recently, the right to privacy became a heated issue in India with the people raising concerns over the privacy of their information provided on Aadhar cards. However, the question that arises here is how private should the right to privacy be and where did this debate start?

This all started on September 23, 2016 when the Delhi high court allowed WhatsApp to roll out its new privacy policy but stopped it from sharing the data of its users collected up to September 25, 2016, with Facebook or any other such company. It is not only a single instance when a private entity is using its user’s data but most of the other mobile apps that we use nowadays ask users for permission to access their data such as the contact details, location etc. Most of the people take this very casually without giving a second thought to it. But some people have apprehensions about sharing their personal data and their fear cannot be negated keeping in mind the possibility of information misuse. Many people today are comfortable with the online payments even when they are unaware of the payment gateway through which they are making their payments. They don’t even know the name of the payment gateway and the security features they use before passing it to a third party. The password that they share with a third party can be misused if the connection is not secure and what happens next, should it occur, is anyone’s guess.

Today, Google has made our lives quite easy by providing us customised information as per our needs with just a few clicks, and we often cheer at this convenience. When we use Google as a search engine for any information or online purchases, all the search information regarding customer preferences is captured by Google, but we have never thought what Google exactly gets out of this data. Recently, European Union has slapped a fine of $2.7 billion on Google for manipulating their search results and showing their products on the top of the results. Taking another real-life scenario example, Google Map shows you the expected time you would take to reach your office even when you have never fed your office location and never used the navigation on that route. Google does this by using artificial intelligence which generates this data after observing your routine for a specified period of time. With this example, we can understand the level of privacy that we are getting in our daily lives when a third party is monitoring our activities.

Coming back to the issue of Aadhar card that has highlighted the right to privacy that people in India are seeking from the government. Although the Unique Identification Authority of India (UIDAI) has assured that there are sufficient safeguards to protect the biometric data of people, still there are apprehensions among people that there are possibilities of fraudulently replacing a person’s biometric identity. However, this data is far more secure than the data that is available to the private players as this data is located in India and there are fewer chances of a security breach when the government is accountable for this information.

If we talk about the law in India, privacy has not been mentioned as a fundamental right anywhere in the constitution, but a reference to it has been made in the article 21 that talks about the right to ‘life’ and ‘liberty’. The petitioners supporting the right to privacy have suggested that the right to privacy was inalienable and inherent to the most important fundamental right which is the right to liberty.

As there is no clear description of the right to privacy in the constitution, there has been debate whether to declare it as a fundamental right or not. There have been various arguments and counter-arguments supporting the declaration of the right to privacy as a fundamental right. Though after the mid-seventies, several judgments by the benches of the strength of two or three judges had held right to privacy as a fundamental right, the judgments of 1954 and 1962 by the larger benches have decided otherwise.

In the recent judgments, Supreme court has stated that right to privacy is a fundamental right even if it might not be explicitly stated in the constitution. Renowned politician and lawyer Kapil Sibbal has also supported that the Right to privacy is not an absolute right but a fundamental right and court has the discretion to decide in the cases relating to the right to privacy which means that individuals may exercise their right to privacy restricted to certain conditions.

While Congress is supporting the right to privacy as a fundamental right, there are claims by the BJP that the right to privacy cannot be a fundamental right. The Centre had termed privacy as a “vague and amorphous” right which cannot be granted primacy to deprive poor people of their rights to life, food, and shelter. Various welfare activities targeted for the poor cannot be accomplished without fringing the right to privacy as the government requires its citizen’s data for policymaking and law enforcement. It also helps judiciary in finding the defaulters and punishing them.

Moreover, the primary concern of people in sharing their data is not only privacy but a fear of misuse of data. In a country especially like India, where digitalisation is still in the nascent stage, sufficient steps need to be taken by the government to build trust among people regarding protection of data. These measures include developing a robust system of information handling and making people aware so that they can identify which type of data can be shared with whom and which information should be kept confidential. Apart from this, clear laws must be put in place for stricter punishments to perpetrators in case of violation of the law.

Taking into account all the arguments for and against the right to privacy, we can safely conclude that there is particular kind of information that has to be shared with the government and other private entities but for some other cases, discretion lies with the individual. Clarity in law that specifies the level to which an individual can assess his right to privacy is the need of the hour. Also, sufficient steps should be taken by the government to ensure that the information of individuals is safe and secure. Further, stringent laws must be put in place in to punish the guilty.