Business Standard: New Delhi: Saturday, August 26, 2017.
Supreme Court
has ruled the right to privacy is a fundamental right protected by the Indian
Constitution, in a potential setback to the government’s push to mandate
Aadhaar for everything from the filing of tax returns to operating bank
accounts. Now, with the battle lost, will the government uphold the verdict
with all sincerity or will it find loopholes to get its way? The writers share
their views on what comes after the apex court's judgment.
Privacy has
been upheld as a Fundamental Right. This is a victory we must celebrate.
However, the judgment has also left open several questions that are yet to be
answered. If privacy is a Fundamental Right, what does it mean for the LGBT
community? What does it mean for the beef ban? Will it affect the Right to Information
Act? Will the government still allow its citizens to question how their elected
representatives are utilising public money for development? What will its
effect be on Goods and Services Tax (GST)? What will be the fate of Aadhaar?
Will people in rural India still need to provide an Aadhaar to receive their
entitlements? What will happen to the biometric data of billions of Indians
that has already been captured and linked to telecom, banking, and other
services? Will the government have to seek permission from its citizens before
using their personal data for any purpose? These and so many more questions are
waiting to be answered even as we hail our Right to Privacy today.
More than
half of India's "illiterate" population cannot even read the Constitution,
let alone understand its nuances. So, how does the state guarantee all its
citizens understand their Right to Privacy and how does it promise to safeguard
this privacy under the law of the land?
Earlier,
during the proceedings, the government had made several attempts at defending
its right to own and use, at its will, the public’s personal information. It
accused consumers of providing personal data to private companies like Facebook
and Apple without a fight, ignoring completely that consumer rights are
different from citizen rights. It even went ahead to say that only "wrong
doers need privacy" and that the "poor don't need privacy".
Terming the
government’s submission that the Right to Privacy is an elitist construct as
"unsustainable", the court judgment on Thursday read, "The
refrain that the poor need no civil and political rights and are concerned only
with economic well-being has been utilised through history to wreak the most
egregious violations of human rights. Above all, it must be realised that it is
the right to question, the right to scrutinise and the right to dissent which
enables an informed citizenry to scrutinise the actions of government. Those
who are governed are entitled to question those who govern, about the discharge
of their constitutional duties including in the provision of socio-economic
welfare benefits." This is a landmark comment that reminds the lawmakers
that they cannot always speak for the masses and that simply because they’re
sitting up in their hierarchy, they cannot snatch the rights of the poor in the
name of serving them.
Our 70 years
of development history has been a testimony to several laws and Acts that have
been poorly implemented at a mass scale in the last mile. In several parts of
the country, we have seen the questionable implementation of the Mahatma Gandhi
National Rural Employment Guarantee Act (MGNREGA), Right to Education (RTE),
Right to Food, and Right to Information (RTI), among others. What makes us
believe that our Right to Privacy will not be restricted at the government’s
whims and fancies?
Thousands of daily
wage workers do not get their rightful wages for all of the 100 days of labour
because of corrupt officials who pocket this hard-earned money. A nutritious
mid-day-meal is still a farce at thousands of government schools across the
country. Despite the RTE being in place, there are schools functioning with
barely any infrastructure or even teachers in attendance. Proactive disclosure
under the RTI Act is a law, yet Kerala is the only state that has implemented
it. The first decadal study conducted after the RTI was implemented in October
2005 revealed that over 17.5 million applications had been filed, with
one-fourth being requests directed to the Centre. This only highlights the
amount of information, which should have been publicly available to citizens,
that is hidden behind walls of massive paperwork. There are also ample cases
where citizens have been denied information under RTI for vague and nonsensical
reasons.
The
government is notorious for breaking its own laws and this is worrisome. The fact
that the government was leading the battle against privacy shows that India’s
lawmakers do not want to grant citizens their privacy. Now, with the battle
lost, will the government uphold the verdict with all sincerity or will it find
loopholes to get its way? Let’s not forget that even though the Supreme Court
struck down Section 66A, states have used Section 499 and 295A of the Indian
Penal Code, which amount to defamation and outraging religious feelings of a
group, against individuals for sharing "offensive" content on social
media networks like Facebook and WhatsApp. Freedom of Speech is a Fundamental
Right. However, we have seen more restrictions imposed on it probably than on
any other Fundamental Right. Union Minister Ravi Shankar Prasad, while accepting
the court’s judgment, has already stated that "even a Fundamental Right to
Privacy has limitations". What will these restrictions be and how will
they affect you and me?
Osama Manzar
is Founder-Director of Digital Empowerment Foundation and chair of Manthan and
mBillionth awards. He is member, advisory board, at Alliance for Affordable
Internet and has co-authored NetCh@kra–15 Years of Internet in India and
Internet Economy of India. He tweets @osamamanzar.
Udita
Chaturvedi is a Senior Communications Officer at Digital Empowerment
Foundation. She tweets @uditachaturvedi.
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