The Right to Privacy Bill will have to incorporate adequate safeguards to ensure it does not violate other rights
PRIVACY IS a notion struggling to survive. What is threatening to destroy the right to privacy is the inordinate expansion of State power, to get, hold on to, share and use information about each of us. The past three years have seen an explosion of laws, rules and projects allowing the State to collect information about people. Let’s take an inventory.
In 2008, it was the Collection of Statistics Act. This was enacted “to facilitate the collection of statistics on economic, social, scientific and environmental aspects, and for matters connected therewith or incidental thereto”. The 2008 Act has no boundaries on the kind of information that can be sought; it can ‘outsource’ the collection of data; and all individuals and households become bound to answer any question put to them. Else, as a newspaper headline tersely explains, it will be “Fine, jail for giving false information to government enumerators”.
In 2009, it was the Unique Identification Authority (UIDA). Grave concerns surrounded this project, about how it would jeopardise privacy, that led to a law on privacy being placed on the agenda. The use of the number to tag, track, profile and converge data has become a firm possibility. Promoted as ‘voluntary’, it is systematically being made compulsory. An approach paper on privacy done for the Department of Personnel and Training says: “As more and more agencies of the government sign on to the UID project,the UID number will become the common thread that links all those databases together… There is tremendous scope for… commercial exploitation of this information without the consent/ knowledge of the individual.” Yet, there is no legal protection offered against convergence of information that could throw privacy to the winds.
In December 2009, the National Intelligence Grid (NATGRID)was established within the Home Ministry. This will funnel information about us from 21 databases to 11 security agencies. Then, there is the census and the National Population Register. In April 2011, rules framed under the Information Technology Act, explained that “sensitive personal data” includes “physical, physiological and mental health condition”, “sexual orientation”, “biometric information” and so on; those holding such data are required to share it with the government when asked.
It is this excessive State interest in the individual that has made the Privacy Bill so important. The Bill sets up a ‘right to privacy’. It shows a relative intolerance of interception of messages, surveillance, use of biometric data in a way that amounts to a ‘civil wrong’, and breach of privacy in relation to information regarding health. Gathering, disclosing, using or processing data that violates the right to privacy is restricted. The consent of the individual is a prerequisite for parting with information — and that is a useful starting point — although the complexity of consent and confidentiality still needs to be developed.
The Bill could lead to pre-censorship. It only weakly protects journalistic privilege in clause 30
The protection is from revealing ‘private’ information to the ‘public’. When the State gathers information and shares it with its agencies, the Bill does not recognise it as an invasion of privacy. This Bill does not rock that boat.
On the other hand, this could become a route to pre-censorship, for there is only the weak protection of journalistic privilege in clause 30. What would this law do to sting operations? What would it do to investigative reporting? What about the whistleblower? What about public personages and their curtailed right to not being written about?
It is important not to forget that a law on privacy acquired urgency and became a priority when the State started collecting all manner of data, from all kinds of sources, about us. A law safeguarding privacy will have to address this. It will, equally, have to be so worked that it does not silence the right to speech and expression.
Usha Ramanathan is Law, Poverty and Rights expert.