1. Right to privacy crucial element of consumer rights in Digital India; here is why it is not absolute

Right to privacy crucial element of consumer rights in Digital India; here is why it is not absolute

Entities authorised by the state have the right to seek information and data from citizens. But this also means that, if the custodian of the user data misuses, leaks, or fails to protect, the data, it would be legally liable.

By: | Published: August 15, 2017 6:14 AM
Right to privacy, Digital India, consumer rights in Digital India, Narendra Modi, PM Modi's Digital India, UPA government, Aadhaar, Section 66A of the IT act Privacy is a crucial element of consumer rights in Digital India—where consumers, corporates and the govt, ALL have rights and obligations. (Image: PTI)

I have written, spoken extensively about, and legally fought for a framework of legal rights for consumers and citizens—a critical issue as technology transforms and disrupts our lives, business and relationship between citizen and the government. I have been a long-standing advocate of ensuring rights to digital consumers and have made repeated efforts to realise these rights through my several interventions in Parliament and as well as outside it. When faced with an unresponsive government, as was the case during the UPA times, I have also approached the court with PILs and successfully fought to revoke the the draconian Section 66A of the IT act to protect digital freedom of expression and voting rights for armed forces.
Privacy is an important and crucial element in this basket of consumer rights for Digital Indians.

As in the case of Section 66A, after my repeated interventions in Parliament on Aadhaar, its weak architecture and threat to privacy, which I have been flagging since 2010, failed to evoke a response from the UPA government, I approached the Supreme Court in March 2014 to highlight that the implementation of UID/Aadhaar is in violation of fundamental rights of citizens. The issue of Right to Privacy has finally reached the Supreme Court’s nine-judge Constitutional bench—after navigating a three-and-half-year journey through Parliament and courts on the back of debate on Aadhaar.

I started critiquing Aadhaar and its very flawed design and weak verification procedures way back in 2010. Aadhaar, during the UPA, involved 1000s of crores of rupees of public money being spent on a project that had no discourse or debate and no legislative sanction. This deliberate lack of debate and scrutiny has led us to a situation where a huge database constructed clumsily had no reciprocal legal protections for those whose were enrolled into Aadhaar and had volunteered data into it.

For the last several years, Aadhaar and its designers kept hiding behind glib statements like “Aadhaar is designed for privacy” which unfortunately many in the government and media accepted blindly. However, privacy is an issue that impacts every Digital Indian as more and more of us, as our lives, our businesses are transformed through the power of innovation and technology. The realisation has grown amongst consumers, media and civil society that Aadhaar and other aspects offer little or no protection for the individual.

As with the Section 66A, here too, I first brought the spotlight on the issue within Parliament in 2010 through various interventions and have continued doing so over the past seven years. After failing to get the necessary responses from the then UPA government and in Parliament, I approached the Supreme Court.

Here are how my legal efforts have progressed over the last three-and-a-half years:

March 11, 2014: Filed an impleadment application in the Supreme Court highlighting the violations of the Fundamental Rights of the Citizens due to the implementation of Aadhaar in its present form.

March 14, 2014: The Supreme Court issued an order asking agencies to revoke any orders made by them making Aadhaar mandatory for availing benefits and forbade the UIDAI from sharing any information in the Aadhaar database with any agency without the data subject’s consent.

August 11, 2015: A three-judge bench of the Supreme Court referred the challenges to the Aadhaar programme arising on the issue of violation of privacy to a Constitutional Bench, with a mandate to determine the existence of Right to Privacy as a fundamental right.

October 15, 2015: A five-judge bench headed by the CJI, while limiting the use of Aadhaar for the delivery of select government subsidies, also referred the question of privacy as a fundamental right to a larger Constitutional bench

July 19, 2017: A five-judge bench specially constituted for hearing the petitions challenging the constitutional validity of Aadhaar, referred the limited question ‘whether right to privacy is a fundamental right or not’ for the consideration of a nine-judge bench—a delayed, but necessary move.

All this is may sound confusing to most Indians. There are also varied interpretations of privacy and what that means to a citizen. So, here is a simple way for to understand this debate and join it. There are many views on privacy, ranging between that of the absolute purists who believe that the state has no right to seek any information from an individual, and the other extreme, those who believe that the state should not have any fetters on seeking and using individual data and information.

But I subscribe to neither of these two positions, and believe privacy is a fundamental right under Article 21, and it is subject to reasonable restrictions and so it is not an absolute right. So, entities authorised by the state have the right to seek information and data from individual citizens for the stated cause. Correspondingly, citizens have an obligation to provide such data. Those state entities that collect, store and manage the above-mentioned volunteered data must have legal and constitutionally-embedded obligation of using that data only for the purpose specified.

Reciprocally, it implies that the giver of the data has right of consent on the use of the data for any purpose except for the purpose for which it was originally given. So, for example, if UIDAI has sought your biometrics as part of the Aadhaar enrollment, and wants to use that data for any other purpose, it must seek your explicit consent for that purpose. Such a fundamental right to privacy also means that, if the custodian of the user data (private/state) misuses/ leaks/fails to protect the data, it would be legally liable and be in contravention of this fundamental right to privacy. My counsel Sajan Poovayya, has argued all these points in front of the Supreme Court’s nine-judge bench in the recent days.

The outcome of the deliberation by the Constitution bench will have far-reaching implications on shaping the rights/protection of the citizen/individual and balanced development of Digital India— where consumers and corporates and government, all have rights and obligations in the vast and fast-expanding digital landscape. Privacy impacts lives and future of everyone as our digital footprint becomes larger and wider.

I am hopeful that, after my successful fights for voting rights for armed forces and protection of freedom of expression through the revoking of Section 66A of the IT Act, the Supreme Court would also uphold my contention on privacy being a fundamental right. Defending and extending Constitutional rights in the age of technology would indeed be appropriate for a nation that is the world’s biggest democracy, and will soon be the world’s largest digital democracy.

Author is Member, Rajya Sabha & vice-chairman, NDA-Kerala.

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  1. Kamath
    Aug 16, 2017 at 6:28 pm
    I agree that privacy is a fundamental right... But if in a group of people there is a corrupt person and to catch that person the state uses the data of all of the group members... Everytime a person in the group turns corrupt it is silly to ask each and every person if your data can be used for such and such purpose. Worse if the corrupt person witholds that permission and if there is no other way to catch him corruption will continue.

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