Privacy brooks no compromise

  By Vijay Darda | 13-08-2015

Our attorney general Mukul Rohatgi has a flair for the dramatic and when even he stated the obvious in the Supreme Court that the right to privacy is not a fundamental right in the context of the Aadhar card, the common folks in the country were rather shocked and surprised. For so long, the assumption was that along with the fundamental rights to life, liberty and freedom of speech this too was a part of the constitutional guarantees. The unstated argument being that the other three would lose much of their import if this fourth element was missing. Besides in the days not in the distant past there weren’t many assaults on this aspect of our life.

But now we are living in a different world. Unsuspecting citizens do not know that the technology in a digital age makes them vulnerable to some clever snooping by the corporate service providers and the government agencies when they are using simple devices like mobile phones or logging on to write emails. Access to any information on these devices and tools is pretty feasible, and indeed is a matter of choice for the government/corporate service providers.

However, it is the Aadhar card that is the game changer in the privacy business. There are 800 million such cards issued to citizens and they do not include biometric details but once linked to bank accounts to help citizens get the benefits of welfare schemes, they can open up every aspect of your lives to scrutiny by the government. The objective of the Aadhar scheme launched by the Unique Identification Authority of India (UIDAI) is pretty noble. It wants to give an identification number to millions of citizens who do not have any other proof of their identity. But then the problems that come with it are also numerous.

Let us face facts. Governments by their intrinsic nature are control freaks. This has been there from time immemorial, and techniques like opening letters when the snail mail was in vogue were perfected by all spy agencies. They would like to control every aspect of our life, even when it serves no ostensible purpose. The mere idea that a big brother is watching would curtail the freedom of an individual. For the government this serves a very tangible purpose. It can certainly arm twist every citizen when it feels the need to do so. On the other hand the corporate service providers are always willing to monetise information, and selling data bases on the habits of millions of users is a pretty smooth way of making money. So, even if they take different routes, both the government and corporate entities have a vested interest in snooping on the lives of citizens.

For the governments, there is another excuse – counter terrorism and maintenance of law and order. This has got into fashion after the American government introduced a clutch of laws to tackle the post-9/11 fears. Almost every security agency worth its name has developed listening capabilities and these spare none. These are the ones who argue that when you have nothing to hide, why fear any surveillance. They also argue that the satellites in the space can keep a tab on you, so why protest against any terrestrial control. But we also know the misuse to which this capability is put. For instance, our one time army chief V K Singh was involved in a controversy related to keeping a tab on his colleagues.

Surprisingly, Rohatgi has also observed that the right to privacy is not well defined. In the sense that no legal authority has pronounced on the subject in our country. This position may be valid in the legal sense. But from the citizens point of view the privacy issue is pretty simple. When citizens want privacy they simply want to be left alone doing whatever they are doing. So, if they are chatting on the internet, they do not want any authority to snoop on them. Or if they are holding hands in a park, they don’t want the moral police and if they are talking on the phone they don’t want anyone eavesdropping on them. Likewise, they don’t want anyone to read their emails or keep a tab on their credit card spending.

In the context of the privacy debate and especially the Aadhar card there are two terms that are used to justify the prevalence of this system. The first is consent, and the second is balance. It is pointed out that the Aadhar number is not put to any use without consent, and then there is a need to balance one man or woman’s privacy with the overall needs of the society or the security demands from the government. Both are spurious arguments. Most people sign on the dotted sign without reading the fine print. This is because reading the fine print is either cumbersome or implies giving up the use of that service altogether. The second and the more dangerous concept of striking a balance between privacy and security is that the discretion is never in the hands of the individual and since the final arbiter is always the government, the dice is always loaded against the individual.

It would be naive to expect that any government would give up the power to snoop on the citizens when it can. The bar if any can come only from the judiciary. It is up to the wisdom of the judges to suggest ways and means to ensure that any system does not invade the privacy of the citizens under any pretext. The law of the land should not brook any compromise on the right to privacy. It has to be as absolute as the right to freedom of expression. Even if the courts wish to impose any ‘reasonable restrictions’, then they should be explicit and not leave any scope for interpretation by the law enforcers. The Supreme Court should do away with an anomaly that has existed so long in our legal framework. This is all the more imperative in a digital age when the citizen is helpless and vulnerable to attacks from technological weapons.

Before I conclude…

The terror incidents and cross border violations from Pakistan are a major cause of concern on the security front. Both India and Pakistan have shown the maturity to go ahead with their NSA levels talks, despite the provocations to abandon these. This is a step in the right direction. But then it is not enough. Unless violence is reduced there would be no meaningful progress on other fronts. We can have all the people to people level exchanges and even play cricket, but then it has to be accompanied by the lessening of tensions on the border. We have to instill a sense of confidence that we may have disputes with each other, but then there should be nothing that causes fear in the lives of ordinary citizens.

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