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A constitutional value for privacy

by Usha Ramanathan, 9 August 2011

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The Hindu, July 30, 2011

The fine line between transparency for accountability and transparency as a stand-alone ambition is getting fudged.

The notion of privacy has been under attack in recent times. Information technology, with its seemingly limitless capacity to hold, and give access to, all kinds of data and details about peoples, places, happenings and scores of other facts and fiction, has overwhelmed concerns about privacy. Facebook and its kin, though of remarkably recent origin, have already spun a web of forgetfulness around the significance of privacy.

The possibilities offered by technology have encouraged the state to get greedy for all that it can gather about people. In the beginning, it was only the census. The census was confidential. Not even a court could demand, and get, information about an individual collected as part of the census. The census was to get to know the state of the nation; not to delve into details about individuals. The census belongs to a tradition that is being edged into obscurity by more recent forays into data gathering and use.

Collection of statistics

In the past three years, the state has begun to work at enhancing its capacity to reach into people’s lives and know all. Take, for instance, the 2008 law authorising the collection of statistics. This replaced a law of 1953 vintage that was concerned with “industry, trade and commerce,” and sought the help of returns filed and registers maintained in collecting data and churning out statistics. The 2008 Act is ambitious and expands its interest to “economic, demographic, scientific and environmental aspects.” The 2008 law derives its information from multiple sources, including individuals and households who are bound to give information when asked, on pain of punishment if they refuse or give information that was misleading. The law provides no boundaries reining in the statistician’s curiosity. So, to study sex selective abortion, and given that the skewed sex ratio is a matter for national concern, if the statistician decides to seek household data on miscarriages and abortions, that information has to be provided. And, ultrasound clinics can be called upon to be “informants” (a term the law uses), and we may never know that our personal history has travelled from database to database. Confidentiality is crumbling away, unheeded.

In April 2011, rules made under the Information Technology Act 2000 directed that every user of a cyber cafe should provide information including name, address and identification particulars. This, along with the photograph of the person as also a list of sites the person visited, should be preserved for at least one year. The idea of the friendly neighbourhood cyber café owner being the repository of this information does not seem to have struck the rule-giver as bizarre. Another set of rules, also dated April 11, 2011, gives the government the power to demand and get any data including “sensitive” data from any body corporate. This may include information about mental, physical and physiological health, sexual orientation.

In December 2009, the Home Ministry set up and hosted NATGRID. As a part of this, 21 databases are to feed 11 security agencies. It is closed to scrutiny; so we will never know what is being done with data, but we will all be under surveillance. All, of course, in the interests of national security.

The unique identification, or UID, project, marketed as voluntary and increasingly being projected as mandatory so that enrolment targets can be met, is a tool to achieve convergence of data that exist on various databases. It is, of course, not only the state that has an avid interest in these developments. The “market” supports the idea of connecting databases. Convergence will make the fortunes and foibles of the population transparent to the marketers. It is no wonder that they do not protest.

The explanation

This extraordinary momentum to get to “know” the people of India is explained away as being necessary to curb terrorism, or to prevent leakage and corruption, or as being essential to reach services to the poor. Or to give identity to those who the state does not know exist, and which ignorance can only be remedied by giving them a number by which it may be known that they exist. Or to make it possible to produce good statistics, which could, just perhaps, aid better planning. Ominous terms such as surveillance and “social control” are hardly, if ever, invoked even if they underpin each of these exercises. Revealing a steep decline in respect for civil liberties even among those representing civil society, the National Advisory Council’s Communal Violence Bill adopted the idea of interception and non-transmission of communication — before it was withdrawn following criticism.

The Jan Lokpal Bill is drenched in a notion of transparency that treats the “private” as the enemy of the public, and as dispensable. In all this, the fine line drawn in the Right to Information discourse between transparency for accountability and transparency as a stand-alone ambition is getting badly fudged.

Now, happily, it has come to pass that the Supreme Court had lent its weight to the constitutional value of privacy in the Black Money judgment (Ram Jethmalani vs. Union of India, decision of July 4, 2011). The government has been objecting to the judgment as being a case of judicial overreach. It is a little difficult to understand this stance. The government had set up a high-level committee comprising 10 senior officers from various revenue and investigating wings of the state. The Supreme Court renamed this as a Special Investigation Team, while including the Director of the Research and Analysis Wing (RAW) in it. It is not clear why, and maybe an explanation would have helped.

What has irked the state, however, is the inclusion of two former judges of the Supreme Court to “guide and direct” the team. The judges found that “the major problem in the matters before us has been the inaction of the state,” and this inertia and lack of urgency needed to be set right. Yet, it is not as though the judges took the matter away from the executive; what they did was to introduce the judicial element, which would monitor progress in the investigation and act as a spur. This could be just what is needed to add a dash of transparency to governmental proceedings.

This same decision goes on to protect the individual person. In a refreshing return to constitutionalism and restoring significance to privacy when placed in a balance with public interest, the judges have expended thought and effort (paragraphs 72-77) in explaining the “right to privacy.” To pluck a couple of statements which are representative of what the judges held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner… We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-state to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.”

The difference between a transparent state and a private citizen has been clearly established. These are words to be weighed while looking for the limits on the power of the state, and as privacy jurisprudence is developed.

(The author is an independent law researcher working on the jurisprudence of law, poverty and rights.)


The above article from The Hindu is reproduced here for educational purposes and is for non profit use only.