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Right to Privacy

Arguing for the People

The right to privacy was finally elevated to the status of a fundamental right in Puttaswamy’s case (2017). The right to privacy is a natural right that inheres in every person and has been held to be part of the fundamental right to life and liberty as well as the other fundamental freedoms and rights embedded in Part-III of the Constitution of India. In Puttaswamy-I, the Supreme Court has highlighted the importance of Informational Privacy as a facet of the right to privacy. The threats to Informational Privacy emanate from State actors and non-State entities. In Chapter 1, I have explored the contours and significance of Informational Privacy as the Internet continues to invade into every aspect of our lives.

In Chapter 2, I have highlighted the minority opinion of Justice Dhananjaya Y. Chandrachud in the Aadhar case that has gone unnoticed by citizens and privacy activists. Justice Chandrachud has found the Aadhar project to be in violation of the right to privacy of the citizens and is vulnerable to citizens being kept under surveillance by State and non-State entities. According to the minority view, Aadhar can be used to profile individuals and track them whenever and wherever. In my view, Aadhar could make the Orwellian fiction of the Big Brother State watching you, a reality in future. Whether the Aadhar card will prove to be a nemesis for the privacy of Indian citizens or the most valuable instrument for delivery of social welfare benefits to the people will be judged by the future generations.

The government has drafted the Personal Data Protection Bill, 2019, which is pending legislation. The law in process seeks to usher a robust data protection regime in the country. I have analyzed the Bill, giving its salient features. The law in the making keeps the individual, whose data are being processed by online enterprises, in the forefront for protection of his data from misuse, overuse, and profiling. The online entities, which obtain data of individuals for processing, in other words, for executing transactions (e.g., banking, online sales, social media services, etc.), have been entrusted with a host of duties as data fiduciaries. The law in the works is a major step in the right direction for protection of citizens’ data that is his property as also defines him in the virtual space. An individual is a bundle of data in the virtual world and ceases to be a physical person with blood and flesh, hence, the imperative need to protect his data.

In Chapter 4, I have critiqued the Privacy Policies of Social Media platforms and E-businesses de hors the above Personal Data Protection Bill, 2019, as it is still to be made law. I have selected the Privacy Terms/Agreements of WhatsApp and Zomato for a critique in the light of the principles laid down in Puttaswamy-I and the Information Technology Act, 2000. Massive profiling of individuals is taking place in the virtual world by commercial enterprises for targeted advertising and for providing services by understanding the consumers’ past behavior and transactions. In this competitive world of e-commerce, commercial enterprises are scrambling to be ahead of rivals and thus in order to provide the ‘best’ experience to consumers, profiling is happening on an unimaginable scale. In this spirit of competition, the right to informational privacy of individuals is being compromised. I have given my views on the way forward to check this virtual profiling by commercial enterprises.

We the people must rise to protect our privacy from State functionaries and law enforcement agencies. The government seeks to intrude into our privacy for aims they call legitimate, such as, for prevention and investigation of certain crimes. Rule 4(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, has been kicked into play so as to tame the big social media intermediaries (WhatsApp, Twitter, etc.) into providing information about the originators of certain messages to law enforcement agencies for preventing and investigating certain crimes. How does Rule 4(2) eat into the privacy of citizens? Does it need tailoring? Is it constitutionally justified or violates the right to privacy? In Chapter 5, I have addressed these questions of critical importance to citizens of the country. Without taking sides, I have also given my views on the ‘Toolkit’ controversy between Bharatiya Janata Party (BJP) and Congress, in the light of the larger issues of privacy. I have examined Rule 4(2) in the light of the ‘Toolkit’ dispute and made out a case for reframing the rules of the game.

In Puttaswamy-I, the Apex Court said that while the right to privacy was being elevated to the status of a fundamental right, its numerous species are being left open for recognition in future. As a fallout of this, Lesbian, Gay, Bisexual, and Transgender (LGBT) rights have been recognized and the colonial Section 377 of the Indian Penal Code, 1860, has been declared unconstitutional in Navtej Singh Johar’s case, insofar as it criminalized consensual sex between individuals of the same gender. Also, Section 497 of the Indian Penal Code, 1860, that penalized adultery, has been struck down as unconstitutional on grounds including the violation of the right to privacy, in Joseph Shine’s case. In Chapter 6, I have analyzed these verdicts from the perspective of the right to privacy and how the right to privacy came into play for declaring these longstanding statutes as unconstitutional. Also, I have explored certain areas of our lives where the right to privacy must enter in the times to come. The entire landscape of adult entertainment needs a critical relook in the context of the right to privacy. For instance, the liquor prohibition laws deserve to be reset as they violate the right to privacy of every adult citizen who wishes to consume liquor in his private space and can financially afford it comfortably without affecting his livelihood and that of his family. The right to adult entertainment in the form of sexually explicit material on Over the Top (OTT) platforms on the Internet must be recognized as part of the right to privacy of citizens rather than keeping it bottled with vaguely defined offences and legal expressions. The right to live-in with partners and sexual privacy must be recognized as species of the right to privacy. Adults in India must have the freedom of sexual privacy with sex workers when none of their acts fall within the penal prohibitions of the Immoral Traffic (Prevention) Act [ITPA], 1956.

This book is for the people to read and form their opinions on the issues raised herein. The right to privacy is significant for every citizen of the country. Every citizen must take cognizance of the threats to privacy from State and non-State entities. Issues with respect to privacy will affect every citizen and hence must be addressed by one and all.

I have batted for the privacy of the people of my country. I have argued for the privacy of my people all through the book.

The book is written in a simple format and is devoid of legal jargon. I have kept the book short so that it can be read comfortably even in two to three days. It is a book anyone interested in the subject can read.

    • Historical Context
    • Autonomy and Dignity
    • Fundamental Rights
    • Community Expectation
    • Recognizing Informational Privacy
    • Future Legislation
    • Legitimate State Concerns
    • Sum and Substance

    • Aadhaar: Legal Architecture
    • Developing Nations: Challenges
    • Consent Flaws
    • Overbroad Powers
    • Bread v. Freedom: Welfare v. Privacy
      • Capturing Benefits
      • Competing Interests and Proportionality
      • Global Precedents
    • Aadhaar v. Privacy
      • Profiling
      • Aadhaar Life
        • Outcast
      • Function Creep
      • UIDAI: Government’s Control
    • Epilogue: We the People as Criminals

    • Non-State Entities
    • Big Brother Private Enterprises
      • Proportionality
    • Necessity and Purpose: Public Policy
    • Privacy Policies
      • WhatsApp
      • Zomato
    • Way Forward

    • Toolkit Case and Colonial Attitude
    • “Telegraph Act Mindset”
    • Social Media: People’s Obsession
    • People’s Soul v. Executive Power
    • Rule 4(2): God Save Privacy!
      • Legitimacy and Constitutionality
    • Independent Authority: Way Forward

    • Identifier and Property
    • Obligations
    • Right to Be Forgotten and Privacy Policy
    • Data Transfer and Data Protection Authority

    • LGBT Autonomy
    • Adultery
    • Adult Entertainment
    • Right to drink
    • Sexually Explicit Material
    • Sexual Privacy