It is being argued by many authors that with technology the traditional focus of privacy of that of injunction on the State from collecting private, personal information sans consent is no longer relevant. This seems to be the new politics of privacy, i.e. the Aadhaar politics.
To be very frank, I can’t miss the irony here, so a little digression. The Supreme Court of India has decided to constitute a vacation constitution bench to deliberate upon privacy infringement in sharing of data between FB and Wattsapp. EU has ruled against it, but they have more comprehensive definition of privacy covering private persons. Whereas, in India, it is being argued that Right to Privacy just doesn’t exist. However, the Supreme Court has given it an urgent importance when the real challenge to Right to Privacy per se is pending. In any case, I am of the opinion that Right to Privacy should be invocable not only against the State but also against private persons, but of course there are clear SC precedents against it. I don’t know what arguments have been taken in the FB case, but if this case were to succeed, the privacy rights should be invocable against private persons as well.
Now coming back to Right to Privacy against the State, the traditional definition (and I think the only definition) of Right to Privacy is that of it being part and parcel of Right to Liberty, Right to Life, Right to Freedom, etc. I personally would not mind to constrict it to only being part of Right to Liberty because then it ends all confusion and the definition can then be scaled up to all frontiers wherever the Right to Liberty takes us against the State. However, the moment I club my Right to Privacy with data protection available under the new technology regime, I lose half my battle because then my protection will be guided by the policing structure for data protection: the more the policing, the more the protection. In other words, the State would become a Welfare State with respect to access to my own data. It will remove my ownership over my data and hand it over to the community under the guardianship of the State Forces, who would then apparently police my own data even against me in the interest of the whole data owned by the commune — this is precisely what the Aadhaar Act does. It is indeed Communism, which Communists understand pretty well too; therefore, there is hardly any protest from them. But, at the same time, this is also Crony Capitalism because the State can then very easily work in tandem with the Big Business to exercise control over my private life. The activists and probably also the intellectuals are failing to understand this or are ignoring this. Aadhaar is harbinger of a new political structure in which Trump, Putin and Xi Jinping would merge their political ideologies into a new totalitarian structure. Modi, a megalomaniac, wants to prove himself the smartest by starting the race even before the whistle has been blown.
Anyways, if the SC fails to uphold the Right to Privacy against the State u/a 21 of the Indian Constitution as being part of Right to Liberty, it will be a defeat of humanity.
© 2017 Ankur Mutreja