Strike balance between technology and need to protect privacy

The DNA Profiling Bill, which proposes to create a database with sensitive personal data, is to be tabled in parliament. The apprehension that it may be subjected to misuse and violate the right to privacy is not misplaced as there is hardly any safeguard against it.

Recently, the Attorney General took a position in the Supreme Court, in a case relating to a unique bio-metric ID (Aadhaar), that the right to privacy is not a fundamental right.

This has led to concerns about this right and raised the hackles of those who feel that the right is inviolate. The AG was replying to the question whether making people reveal personal data would not amount to intruding into their privacy, and he defended the Aadhaar scheme and the need to have personal data as several national programmes and schemes are being implemented and pilferage could ne checked through IT platforms using computerised data collected from citizens.

Technology has huge advantage that makes things easier and transparent like transfer of cash to beneficiaries directly to their bank accounts in which kickbacks are not required to be given. But it also exposes people to huge unanticipated risks and their is privacy compromised as cyber crime is a big threat. So, a balance needs to be struck between advantages of technology and the need to protect privacy and prevent its misuse.

There is a need to protect the right to privacy, which is recognised as part of the right to personal liberty, irrespective of the fact whether the SC has stated it in express terms or not. The Planning Commission had appointed a group of experts headed by former chief justice of the Delhi High Court A P Shah to make recommendations in this regard.

The committee, in its comprehensive report (2012), recommended a framework for a Privacy Act which would recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy. It is not fully correct to say that there is no fundamental right to privacy. New Delhi has ratified the International Covenant on Civil and Political Rights in which there is a specific reference to the right to privacy.

Indian tradition and customs have always respected this kind of privacy, and the courts were ahead of British and US courts in protecting this right. In 1888, Chief Justice Edge of the Allahabad High Court observed, “In my opinion, the fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be in India a usage or custom of privacy valid in law.”

Advocating the right to privacy for the British nationals on the basis of Indian cases, Percy H Winfield passionately appealed to the House of Commons in 1931 in these words, “The Indian cases have been referred to not, of course, for the purpose of urging their application to the different particular circumstances which prevail in England, but as an illustration of the pliability of Indian law where the need of protecting privacy has been felt.”

Section 509 of the IPC, 1860, makes it a crime to intrude into the privacy of a woman. It was not imported from England, nor a novel contribution of Thomas Babington Macaulay, but just a codification of the long-established tradition obtaining in India. Our classical literature and epics expounded the law of privacy with this concept as the central theme, and the king, under a moral obligation to uphold ‘dharma’, had to respect the privacy of the citizen.

Even Kautilya, in his Arthashastra, while dealing with the problem of national security risk, recommended the employment of spies but did not assign to them the role of eavesdropper. Rather, he urged the royal spies to sneak into the congregation of people in pairs and stir a debate on the affairs of the state. 

Cherished right

In the Mahabharata also, we find how privacy was respected. Draupadi was the common wife of the five Pandava brothers. To avoid embarrassment, a rule was made that if any one of them happened to see Draupadi in company of any brother he would have to undergo banishment for 12 years in the forest as a brahmachari.

Once it so happened that while Draupadi was with Yudhishthira in a room, Arjun was immediately required to collect his weapons kept in that room. Not finding any alternative, Arjun had to intrude into their privacy, violating the rule. But then he presented himself for undergoing the prescribed punishment.

In the ancient Indian society, we had the concept of “Sarve sve sve grihe raja” (Every man is a King in his own house). The British evolved a similar theory that every man is a king in his own castle. John Stuart Mill categorised the action of man into two classes, self-regarding and other-regarding, and declared that no one has any right to question or snoop into an action that is self-regarding. One needs to sink into the oasis of privacy for various reasons which means exclusion of others from one’s life.

US President Richard Nixon had to bow out of office following the revelation that he had installed tape recording system in the Watergate office complex in Washington DC and had tape recorded the conversations of some of his party men. He had done it to cover up his own misdeeds. But he had to resign on August 9, 1974, and thus, became the only US president to resign so far.

The idea of privacy is an anathema to a totalitarian state which condemns it as “immoral”, “anti-social” and “part of the cult of individualism”. But in democratic countries, it is a cherished right. Intrusion into privacy involves tort. It has been explained by the California court in Melvin v. Reid (1931).