Supreme Court verdict could affect operations of tech giants in India     

ROHIT CHANDAVARKAR
Thursday, 24 August 2017

The argument which one former Attorney General of India presented in media debates that privacy in any case is infringed by private companies who track consumers behaviour so why should the government not track citizen’s behaviour and private life, has been struck down. Obviously when a citizen exposes his data or location to private vendor companies it is out of choice, (he/she has the option of do or not to do so) in case the citizen is dealing with the government there will be no option and forced tracking could happen. 

The landmark judgement by the Supreme Court of India saying the privacy is a fundamental right is a watershed moment in India’s legal history. Though citizens of India could claim their privacy even earlier, what this judgement does is that it adds this right to the list of fundamental rights so an infringement of this right can now be taken up by an aggrieved to high court or supreme court in form of a petition against the violator. That is a hug victory for the petitioners who insisted that privacy should be a fundamental right.  

The constitutional bench of nine judges have said, overruling two previous Supreme Court judgements and the government's arguments that the privacy should also extend to the rights of LGBT community. The judges also acknowledged there must be restrictions within reason on individual privacy.

The Supreme Court said the right to privacy emerges primarily from the guarantee of life and personal liberty; elements of privacy also arise from freedom and dignity guaranteed by the fundamental rights.

How does it affect the government’s unique citizen identification scheme which is driven by biometric identity known as Aadhar is to be decided by a smaller bench later in separate hearings. However it is now almost clear that Aadhar cannot be forcibly linked to non-government applications such as airline ticket bookings and private purchases or travel etc.  

The other important aspect is that this verdict could now affect the foreign technology giants such as Facebook, Google and Whatsapp that deal in the space of information and communications. The order is likely to have a bearing on several other cases, including one challenging Facebook's access to details of Indian WhatsApp users as a violation of privacy.

The order clearly says that there should be reasonable restrictions allowed on fundamental rights.

Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection.

The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.

These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.

The argument which one former Attorney General of India presented in media debates that privacy in any case is infringed by private companies who track consumers behaviour so why should the government not track citizen’s behaviour and private life, has been struck down. Obviously when a citizen exposes his data or location to private vendor companies it is out of choice, (he/she has the option of do or not to do so) in case the citizen is dealing with the government there will be no option and forced tracking could happen.

Clearly the constitution bench has seen sense in the petition and what has been decided by the court upholds freedom and democracy in the long run.

Right to privacy verdict: Timeline

Jul 7: Three-judge bench says issues arising out of Aadhaar should finally be decided by larger bench and CJI would take a call on need for setting up a constitution bench.

Jul 12: Matter mentioned before CJI who sets up a five- judge constitution bench to hear the matter.

Jul 18: Five-judge constitution bench decides to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.

Jul 19: SC says right to privacy can’t be absolute, may be regulated. Centre tells SC that right to privacy is not a fundamental right.

Jul 26: Karnataka, West Bengal, Punjab and Puducherry, the four non-BJP ruled states move SC in favour of right to privacy. Centre tells SC that privacy can be fundamental right with some riders. 

Jul 27: Maharashtra government tells SC that privacy is not a “standalone” right, but it is rather a concept.

Aug 1: SC says there has to be “overarching” guidelines to protect an individual’s private information in public domain.

Aug 2: SC says protection of the concept of privacy in the technological era was a “losing battle”, reserves verdict.

Aug 24: SC declares right to privacy as fundamental right under the Constitution.

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