#Columns: Privacy as a Public Value

Thulasi K Raj

Nine judges of the Supreme Court of India are deliberating on

the status of the constitutional right to privacy and its link with the Aadhaar scheme. The arguments made and the questions raised will have significant ramifications on our democracy.

The Supreme Court proceedings have posed certain academic suspicions, even among legal scholars. For instance, Prashant Reddy seriously argues that the Supreme Court has “divorced” the privacy issue from “the Aadhaar challenge”. Another argument is that the Court is embarking on a theoretical debate without assessing the Aadhaar scheme with its nitty-gritties.

I think both the apprehensions are premature. This is because a conceptual debate on the meaning and nature of the right to privacy is exactly what was lacking in Indian jurisprudence. Moreover, the conventional approach that rights can be violated only by the state or the state organs and not by private individuals also needs to be debunked.

A good theory of privacy must not conceive this right as merely private without any societal bearing. It has a significant communitarian value that the morally autonomous individuals engage in greater social interaction. It establishes collective societal development and an empowered and inspired society. It seems plausible to argue that without a reasonable promise of privacy, meaningful social relationships and interactions tend to diminish. Privacy is, therefore, also a public value.

Two questions

This brings us to at least two complex questions which will tilt the balance in the Aadhaar case in interesting ways. Firstly, is privacy a free standing right, separable from other related rights? And secondly, what does this right entail? It will be interesting to observe which approach and which conception the Supreme Court will subscribe to. In fact, the court’s adjudication on Aadhaar will and ideally should, depend upon a convincing theory of privacy.

Derivative or Distinctive?

The content of privacy has been interpreted in varied ways. The strong contenders in this area are the reductionist and distinctiveness views. The former argues that the right protects no special interest and other rights such as the right to property are sufficient to capture privacy interests. The latter views privacy as protecting distinctive rights and does warrant separate recognition.

The reductionists argue that there is no free standing right to privacy. A strong sceptic, JJ  Thomson, argues that it is a derivative right and part of cluster of other rights, and “it is possible to explain in the case of each right in the cluster how come we have it without ever once mentioning the right to privacy.”

She gives the example of a man who owns a pornographic picture and does not want anyone else to know that he has the picture. She says that if we train our X-ray device on the wall-safe and look in, we would violate his privacy. But she contends that what is violated is his right to property, which includes a negative right that others shall not look at it. Hence, she argues that every seeming violation of privacy is in reality a violation of some other right.

But surely this account must be false. The problem with her argument is that a claim to privacy is not dependent upon other rights. Ownership could often be useful, but not absolutely material in such a claim. Ann, a robber, certainly has the right against another person installing a camera to glimpse at the stolen articles collected in her house. This right remains irrespective of whether she owns the articles in question or not.

Thomas Scanlon seems to be very persuasive as he contends, “ownership is relevant in determining the boundaries of our zone of privacy, but its relevance is determined by norms whose basis lies in our interest in privacy, not in the notion of ownership.”

One would hope that the Court adopts a non-derivative approach to the right to privacy. If so, the Court will not require the petitioners to show the violation of any other right, such as the right to property. If the derivative line is chosen, the Court will require that something more, in addition to the so-called right to privacy be shown.

Conceptions of privacy

Privacy has been conceived by some as the ‘access account’, the  right to access to an individual. This account states that if you can determine who has access to you, then your privacy stays intact. In connection, privacy is viewed as non-interference and the absence of unwarranted intrusion or the “right to be let alone”.

This idea of privacy has been quite easily challenged by what is commonly called the ‘control account’ of privacy. Control theorists demonstrate it through a contemporary example. Imagine that an unknown individual collects your personal information. Imagine further that she stores this information, but chooses not to use it for the time being. Even though she does not use it, your privacy is violated by the mere fact that you know that somebody possesses your information without your consent, even with the possibility of use at a later point of time.

In the novel 1984, George Orwell creates a fictional society where the thoughts of individuals are monitored by the ‘thought police’ of the state. He says that there was no way of knowing if, at a given point of time, you are monitored by the state or not. This is why it has been rightly argued by some of the petitioners before the court that mere surveillance or storage of information itself can create a chilling effect on your actions. It will disturb your private space in dangerous ways.

A balanced access-control theory, which captivates both information and access, does seem appropriate to absorb major privacy infractions. Adam Moore provides a satisfactory definition. According to him, “a right to privacy is a right to control access to and uses of — places, bodies, and personal information.” This seems to address both – collection of information and use of information.

Implications

Aadhaar is said to be probably the largest database of biometric information in the world. The 12-digit Aadhar number creates and facilitates one’s digital identity. According to the government, more than 99% of Indian adults have enrolled for Aadhaar. This is crucial while examining the allegations of Aadhaar data leakage and the privacy implications associated with it.

Whatever the Supreme Court might decide on the issue, the present case invariably has far reaching implications on India’s constitutional law and politics for the years to come. The Court seems to be siding towards a liberal approach to constitutional interpretation.

Those who are skeptical about this methodology can probably find solace in the words of Ronald Dworkin, an influential legal philosopher of the twentieth century. In the introduction to his book ‘Freedom’s law: The Moral Reading of the American Constitution,’ he says that the “moral reading” is the  ideal way of “reading and enforcing a political constitution.…So when some novel or controversial constitutional issue arises….people who form an opinion must decide how an abstract moral principle is best understood…The moral reading therefore brings political morality into the heart of constitutional law.”

(Thulasi K Raj is a lawyer at the Kerala High Court and an alumna of University College London).