Privacy should be protected against state, non-state actors: SC

The right of privacy is a fundamental right and has to be protected both against the State and the non-State actors, the Supreme Court held today.

Justice Sanjay Kishan Kaul, who wrote a separate but concurring judgement with eight other judges, expressed apprehension that the growth and development of technology has created new instruments for the possible invasion of privacy by the State, including through surveillance, profiling and data collection and processing.

Elaborating on the privacy issue, Justice Kaul used an anecdote that "if the individual permits someone to enter the house, it does not mean that others can enter the house."
He said it is an individual's choice as to who enters his house, how he lives and in what relationship.

"The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity," the judge said.

"The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State and non-State actors and allows the individuals to make autonomous life choices," the judge concluded in his 47-page verdict.

He observed that in an era where there are wide, varied, social and cultural norms and moreso in a country like India, "privacy is one of the most important rights to be protected both against State and non-State actors and be recognised as a fundamental right."

The judge also highlighted the deep digital footprints being created due to reliability on internet, saying online majors like Facebook, Uber and Alibaba have "extensive knowledge of our movements, searches and conversations which are sold and analysed for advertising purposes."

"'Uber' knows our whereabouts and the places we frequent. 'Facebook', at the least, knows who we are friends with. 'Alibaba' knows our shopping habits. 'Airbnb' knows where we are travelling to.

"Social network providers, search engines, e-mail service providers, are all examples of non-state actors that have extensive knowledge of our movements, financial transactions, conversations – both personal and professional, health, mental state, interest, travel locations, fares and shopping habits," the judge said.

He observed that as we move towards becoming a digital economy and increase our reliance on internet-based services, "a deeper and deeper digital footprint is being created."

The judge observed that more information is now easily available which has manifold advantages and disadvantages.

"The access to information, which an individual may not want to give, needs the protection of privacy," Justice Kaul said.

The judge observed that the data is generated not just by active sharing of information, but also passively, with every click on the 'world wide web'.