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‘Why is sharing data with state a problem?’

Citizens giving info to private players, observes SC judge

If 99% of citizens are ‘unconcerned’ about sharing personal data with private players, how is it qualitatively different if the state has the same information, Justice D.Y. Chandrachud of the Supreme Court asked on Thursday.

“Most citizens are unconcerned about where or how their personal data is used. You say there are 35 crore Internet users and 18 crore telephone users, but 99% of people are not concerned... When you operate your iPad with your thumbprint, your data is public...” Justice Chandrachud, part of a nine-judge Bench led by Chief Justice of India J.S. Khehar, orally observed.

“The moment you want to travel from Mumbai to Delhi, you will get 100 suggestions. Your private and personal data is in private hands, so is there anything qualitatively different when the state has it? You have surrendered your personal life to private parties, but here we are saying that the state should be restricted from having it,” Justice Chandrachud said, addressing senior advocate Sajan Poovayya, appearing for the petitioners.

The questions from the Bench came on the second day of the hearing on the reference whether right to privacy is an inviolable fundamental right under the Constitution. The final view of the nine-judge Bench would be a core factor before another five-judge Constitution Bench decides whether the Aadhaar scheme was a violation of the citizens’ right to privacy.

The queries are significant because over 100 crore people have already parted with their biometric details for Aadhaar cards. The massive enrolments were initially done through private contractors and agencies. The petitioners have questioned the mammoth exercise; whether the informed consent of the citizens was taken before they parted with their personal details and whether there was information given to people about how and where their personal data would be used. Finally, the government had not specified in a statutory law, where the data would be protectively stored.

Pedestal of secrecy

Answering Justice Chandrachud about the ‘unconcerned’ citizen, Mr. Poovayya said that even if one citizen was concerned about how, where and who uses his personal data, it is an obligation under the Constitution to protect his dignity and privacy. “Right to privacy does not stand on the pedestal of secrecy, it holds forth from the pedestal of dignity,” Mr. Poovayya submitted.

“Apple even has watches monitoring my heartbeat. My informed surrender of data to a private player in this digital age is not my surrender of my personal data to all. If this private player takes my data and gives it to all on the Internet, then I can sue him for breach of contract. But if I give it to the state, where are the corresponding restrictions and deterrents?” Mr. Poovayya asked the court.

He submitted that parting of personal information to a private player is for a specific limited purpose. “Again, can you [Supreme Court] say that just because I put my information in the public domain, I have no right to further assert my right to privacy,” asked Mr. Poovayya.

Chilling effect

He said the very apprehension that the state is ‘watching’ chills the citizens’ rights. “Unlimited power of the government to collect, assemble, analyse, profile and use my personal data, chills me. That is, even if the state does not do so... But again, I may be a favourite of the state now, but they can use my personal data against me if I ever cross them years later,” Mr. Poovayya submitted.

He said “no reasonable expectation of privacy is ill-suited in a digital age”.

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