In “ A fundamental error ” ( The Hindu , August 1), Apar Gupta and Ujwala Uppaluri allege that the Srikrishna Committee has undermined and reinterpreted the legal principles in the right to privacy judgment. Neither the report nor the Bill does anything of that sort.
Let us first understand the task that the Committee was faced with. In August 2017, the Supreme Court declared the right to privacy a fundamental right and observed that informational privacy is a key facet of this right. In the wake of the judgment, the court said that the state must create a regime for informational privacy which protects individuals from harm that originates from state and non-state actors. Though the Committee was constituted prior to the judgment, this was undoubtedly its task, as stated in its report.
Towards the collective good
Let us now move to the two key points raised in the article. The first “provocative” claim made is that the Supreme Court has held that the individual is the beneficiary of fundamental rights. This is indeed a provocative claim. To see individuals as the primary beneficiaries of rights is a misreading of the Constitution. The Preamble of the Constitution speaks of a people who value liberty, equality, fraternity and justice. Much like other fundamental rights, the right to privacy is a means to achieve this collective goal of a free and just society. The report makes this point as succinctly as possible when it notes that the importance of a right in this account is not because of the benefit that accrues to the rights-holder but because that benefit is a public good. In other words, there is an important societal interest which is furthered by protecting the right to privacy. An impoverished account that sees rights as furthering only individual interests is perhaps reflective of the society that we currently are — a society which, as a collective, barely values rights. Despite the court’s valiant efforts every once in a while, the failure of our pursuit of liberty, equality and fraternity is there for all to see.
Nothing in this account of rights strays from the right to privacy judgment as claimed by the authors. In fact, one of the sentences picked out by the authors from the judgment makes the same point. The authors quote Justice D.Y. Chandrachud who notes that the “individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well being of the community is determined”. Evidently this statement does not reduce rights to tools that solely further individual interests. Rather, it is a recognition of the fact that the constitutional project to realise individual rights is not aimed at the fulfilment of individual interests, but at achieving the higher objective of creating a free and equal society. It is to this effect that the Committee notes that it would be an error to view individual rights as deontological categories which protect individual interests. Privacy is a fundamental right not merely because I value it or stand to benefit from it, but because we as a society value it and stand to benefit from it.
Now, the second claim. The authors suggest that the report endorses a view that the right to privacy dissolves in the face of amorphous claims of economic development. Instead, the report actually dismisses the notion of such a binary. The Committee specifically emphasises that protecting the autonomy of an individual is critical not simply for her own sake but because such autonomy is constitutive of the common good of a free and fair digital economy. This proposition does not make the crude argument that individual rights are subject to some notion of greater good. Rather, it expresses the view that protecting the autonomy of data principals is critical as it will encourage the flow of information. Therefore, the Committee observes that such an economy envisages a polity where the individual autonomously decides what to do with her personal data, entities responsibly share such data, and everyone uses data which have immense potential for empowerment, in a manner that promotes overall welfare.
It is all well to say that the autonomy of an individual with respect to personal data should be protected for its own sake. But stating that the right must be protected to the fullest, as information flow will gather pace in a digital economy, does not detract from the right in the least. In fact, it gives an additional reason to pursue the right. In India, in recent years, it is considered a mark of good constitutional scholarship to view any argument which points towards economic development as disingenuous. Frankly, this is surprising for a country where many struggle to make ends meet. If the “digital economy” offers our society as a whole a chance of prosperity without compromising on our privacy, we must take it.
Debating the report and Bill
The Srikrishna Committee report and Bill are not perfect outcomes of a perfect process. However, they are honest attempts to provide rational solutions to real problems in an incredibly complicated and contested area of policymaking. Any criticism of the report or the Bill should be wholeheartedly welcomed. However, pointing out the odd use of difficult language or of inadequate context while citing foreign authorities does not address the real issues raised in the report or the Bill.
Shankar Narayanan leads the Public Law vertical at the Vidhi Centre for Legal Policy and assisted the Srikrishna Committee. Views are personal