The Judgement

Privacy vs Security

P Arun

The Supreme Court delivered a momentous judgement on privacy. In Justice K S Puttuswamy (Retd) vs Union of India, the nine-judge constitutional bench utilised its interpretive jurisdiction and unanimously declared that privacy is a constitutional right. After this judgement enthusiastic responses started overflowing in several newspaper dailies and journals. It was widely hailed as a landmark judgement for being remarkable for "its clarity of vision and elegance" and stinging criticism to the preceding judgement on Section 377. However, the outcome of this judgenent was also examined by the sceptics who held that privacy had not been defined by the court in a "more precise way" ("First Define 'Privacy'" by Shailesh Gandhi in EPW, 2 September 2017). Because it failed to identify its contours, would curtail Right to Information and freedom to publish: A legal expert was sceptical about the nature of privacy adjudicated by the court. She pointed out clumsy exceptions given to vital state interests and surveillance state (''Data privacy : Great idea, but there's room for the State to step "by Chinmayi Arun in Indian Express, 25 August 2017). Despite jubilation around this judgement from different corners, the sceptics have poignantly touched upon not merely problems but also its consequences in Indian democracy.

Definitional under-coherence had been the core of the concept of Privacy. And it is regarded to be in the state of disarrary and chaos (Daniel Solove/Julie Innes) due to its vagueness and ambiguity as what it means. And it is a problematic concept because it is "so complex, so entangled in competing and contradictory dimensions" (Robert Post). According to Ronald J Krotoszynski, it is a polysomdus concept which is highly protean in nature as it contains a multitude of concepts. Despite being a problematic concept, it does not lose its sheen and relevance in a democracy, because it is the harbinger for citizens' liberties and freedoms. The author was right as he suggested: "law needs to [be] definitive as possible". But if one looks into the  judgement, it tried to define the significance, of different normative values in privacy such as individual personality, autonomy, dignity, creativity, imagination, self-creation, independence, freedom of thought, reputation, hetrogeneity and many more. Also in case of privacy instead of regarding the court's failure to define privacy, one can see that it opened doors to envision privacy in different contexts and circumstances. Helen Nissenbaum proposes a context based approach to privacy. The context-relative informational norms, define and sustain essential activities and key relationships and interests, protect people and groups against harm, and balance the distribution of power. Here the information gathering and dissemination be appropriate to that context and obey the governing norms of distribution within it and its failure would be the violation of contextual integrity?

The abovementioncd sceptics also untapped the dilemmas and contradictions such as—right to information and right to privacy, right to publish vs right to privacy, national security vs privacy and social security vs privacy. These debates can be seen more intently as a tussle between "political rights vs economic rights" and "communitarianism vs individualism".

The issue concerning to corruption is a serious issue, along with the distribution of welfare resources to the poor. However, the author in a sweeping statement said, "right to privacy ends where the RTI and the right to publish starts". And he went on to suggest the need for Aadhaar to curb corruption and leakages in welfare schemes. The author seems to contradict, while on the one hand suggesting transparency and accountability, on the other hand, he proposed to deploy non-transparent and unaccountable biometric system. Here the problem needs to be dealt with little caution and care, the right to privacy and right to information/publish/avail resource need to get along with each other where one cannot trump over the other. Even the court held that

"Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realising or fulfilling socio-economic rights do not postulate the subversion of political freedom". 155 (pg 216)

"Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects". 157 (pg 221)

Instead of placing them in a state of antagonism, what is needed is to protect what the constitution guarantees, i.e., individual civil and political rights along with the aspirations for achieving socio-economic rights. Therefore, they need to be equally protected, because they are "complementary and not mutually exclusive". 155 (pg 217) Also, there is an instrumental value of political rights on socio-economic rights. The court pointed out historically how the denial of civil and political rights for economic well-being has been utilised "to wreak the most egregious violations of human rights". 154 (pg 215) Because the "conditions of freedom and a vibrant assertion of civil and political rights promote a constant review of the justness of socio-economic programmes and of their effectiveness in addressing deprivation and want". 155 (pg 217)

Proliferating terrorism is a serious concern. It has been 16 years of 9/11 terrorist attacks in US, and in few more months, it would also be for parliament attacks in India. As an aftermath of this, the counter terrorism efforts led to the emergence of the surveillance state. The offshoot of such surveillance created an intense debate on 'Security vs Liberty,' and till now this dissonance is unsettled. The legal expert (Chinmayi Arun) prudently highlighted exceptions for national security, cyber-attacks and distribution of resource. The privacy which was placed in the pinnacle of fundamental right was suddenly displaced. The court on one hand enunciated that,

"Formulation of a regime for data protection is a complex exercise which needs to be undertaken by the State after a careful balancing of the requirements of privacy coupled with other values which the protection of data sub-serves together with the legitimate concern of the State". (179 pg 253)

But on the other hand, court cited a trade-off thesis of Richard Posner who contends that "if we do not allow the Constitution to bend, it may break". He believes that there is a direct connection between liberty and security, a kind of automatic direct balance between them—a 'fluid hydraulic balance'. It alters continually as wax and wane. Posner disdains civil libertarians and maintains that fundamental rights of liberty and privacy are 'mischievously' blocking appropriate measures for national security. As court also cited his words that "privacy is the terrorist's best friend" therefore, the "State does have a legitimate interest when it monitors the web to secure the nation against cyber-attacks and the activities of terrorists" (179 pg.254). Along with them some other scholars who agree with trade-off thesis are Adrian Vermeule and Eric Posner. And it was constantly reminded in the present regime that privacy is not an absolute right.

The trade-off thesis is nothing but a zero-sum trade-off. And Daniel Solove observes it as a false trade-off because the balance between privacy and security is rarely assessed properly. He argues that the real balance should be between "security measure with oversight" and ''regulation and security measure at the sole discretion of executive officials". However Jeremy Waldron cautions about consequentialism of trading off, liberty for the sake of security. He argues that "we must be sure that the diminution of the liberty will in fact have the desired consequence". Reducing liberty consequently increases the power of the state, which may be used to cause harm or further diminish liberty. Instead of trading off liberties for purely symbolic purposes and a consequential gain, there should be assessments about the effectiveness of such trade-offs.

Once former Vice Pesident Hamid Ansari raised a question that "does our intelligence system provide adequate safeguard to privacy of communications by making it unaccountable and non-transparent?" Though judgement delivered is hailed as a landmark in protecting rights, but the court lost an opportunity to highlight the significance of accountability and transparency in intelligence and national security. And a major challenge for the democracies around the world along with India, to strike a thin balance between the often-corrosive surveillance measures with civil liberties.

Vol. 50, No.18, Nov 5 - 11, 2017