Right to Privacy in digital arena

The historic judgement of the Supreme Court on right to privacy will change the dynamics of Digital India. It should compel the Government to ensure robust data protection law so that personal  data of 1.3 billion Indians isn’t sold out in the open market. At the same time, the Government will have to protect its own data and take effective measures to tax foreign internet companies, which neither have their servers nor any office in India. These neocolonialists spread all across the globe are the new age East India Companies and the Apex Court has paved the way for India being the leading nation to tackle an issue so big. 

The enormity of the challenge before the SC is clear from its second para wherein J Chandrachud writes, “In an age where information technology governs virtually every aspect of our lives, the task before the Court is to impart constitutional meaning to individual liberty in an interconnected world.” However, the SC took a distant stand regarding ensuring any direct protection through judgment and put the responsibility on the Government by saying, “Formulation of a regime for data protection is a complex exercise which needs to be undertaken by the State.”

After the verdict, Union Law Minister Ravi Shankar Prasad blamed the UPA government for the present fiasco and stated that the Modi government  enacted the Aadhaar Act to ensure data protection. However, he failed to disclose that UIDAI illegally collected data for 7 years in both UPA and NDA regimes. In spite of different provisions of data protection in the IT Act itself, there are different leakages of data by various government departments and private agencies but no penal action has been taken against such body corporate as per IT Act and various rules. In fact, if Aadhaar is so comprehensive, then why did the Centre form the Srikrishna Committee or why has TRAI floated its own consultation paper for data protection? Data once gone, is gone and putting the horse in front of the cart is not going to do any help. 

In 2012, KN Govindacharya had petitioned the Delhi High Court detailing many of the dangers which find a mention in the mammoth 547 page SC judgement. Despite knowing about it at least for 5 years, it was only in February 2015 that the Government notified its Social Media Policy. After strong comments from Delhi High Court, Maneka Gandhi’s WCD ministry tender for appointment of Social Media agency was cancelled in 2014. Instead of following the law, usage of social media took a leap under Modi government, and ministries have now hired professional agencies for as much as Rs 2 crore per year to manage their PR. Even otherwise, a government handle posts a lot of information that has its own content value which is directly pocketed by social media companies, as per their terms of usage. Posts on social media are public record as per the Public Records Act, 1993, and are available under RTI to every citizen. Yet rules are being flouted as government organizations delete tweets, negating the fundamental right to “know” available to every citizen. The Delhi HC also took note of minors accessing the Internet and directed for appointment of grievance officers, which is yet to be implemented by all Internet and social media companies. In spite of the Delhi HC order that children below 13 cannot join social media, as per reports, children as young as three years are on social media. In the SC judgment  Justice SK Kaul has observed, “They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.”

Data is the new oil for which SC  noted, “One of the chief concerns which the formulation of a data protection regime has to take into account is that while the web is a source of lawful activity...web can be exploited by terrorists to wreak havoc and destruction on civilised societies.” The same carries immense security ramifications as was made clear by Edward Snowden and his PRISM  disclosures. Public Records Act, 1993, mandates jail term up to five years for a person taking out a public record, which includes email, out of India. The Government in Parliament has admitted to formulating an Email Policy in 2015 and aims to provide official email IDs to around 50 lakh central government officials but the same is yet to fructify. Interestingly, the Government does not know how many of its employees use private emails, and what is being communicated through them. 

The neocolonialists have details of every imaginable type of personal data. Justice SK Kaul in para 17 writes, ‘Uber’, the world’s largest taxi company, owns no vehicles. ‘Facebook’, the world’s most popular media owner, creates no content. ‘Alibaba’, the most valuable retailer, has no inventory. And ‘Airbnb’, the world’s largest accommodation provider, owns no real estate. Something interesting is happening.” Global conglomerates have designed their corporate structures in such a manner  that they barely pay any taxes in India, despite monetising the data worth billions. Aadhaar, and India becoming a surveillance State may be another debate, but the real dangers come from these non-State actors who hold no accountability. The Government has proved itself to be completely inept at handling crucial technological-legal issues and has worked only in a piece-meal fashion. The Srikrishna Committee on data protection has no deadline to meet, yet Law minister Prasad is optimistic about bringing the Data Bill by December. Even as the law  is in the pipeline, the minister has appreciated data mining which otherwise is illegal as per IT Act and Rules. It seems that right to privacy may have little meaning in the digital world.

The author is a Supreme Court lawyer and an expert in Constitutional affairs. Views expressed are personal