Apple gets personal data, why not state, asks Supreme Court

If 99 per cent of the citizens are unconcerned about sharing their data, how is it different if the State also collects the same, the Supreme Court questioned on Thursday. "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..." said Justice DY Chandrachud. He is part of the nine-judge bench led by the Chief Justice of India JS Khehar hearing arguments that will decide whether privacy is a fundamental right accorded to citizens under the Indian Constitution.

Senior Advocate Sajan Poovayyah responded that even if one person was concerned about how, where and who had access to and used his personal data, the State was obligated under the Constitution to protect his dignity and privacy. "My informed surrender of data to a private player is not a 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?," he argued. "Unlimited power of the government to collect, assemble, analyse, profile and use my personal data, chills me. Even if the State does not do so... 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."

The outcome of this judgment will affect the constitutional validity of the Aadhaar scheme. Justice DY Chandrachud's observations on day two of the hearing were significant since approximately 90 per cent of the population that has already enrolled for Aadhaar has parted with its personal information along with biometrics.

"Footprints are there the minute you use technology. Any competent person can then find out every detail about you," Senior Advocate Gopal Subramanium added. "Our identities cannot float in the Cloud or the dark web. As citizens, we have some expectations to inviolable rights."

The nine-judge bench, which also comprises Justices J Chelameshwar, SA Bobde, RK Agarwal, Rohinton Nariman, SK Kaul, and S. Abdul Nazeer, also discussed the extent of data use and its protection. "A State never says it does not have enough money when it comes to protecting our borders. Similarly, protection of the digital space is equally important," Poovayyah said.

How far does the right to not disclose one's identity be protected specifically when the data is being collected by the State for social welfare schemes? "Can a single mother choose not to share particulars of the father," Justice Chandrachud asked.

Justice Chelameswar remarked: "The Right to Privacy may have vague contours but not clear boundaries."

Suggesting a broad definition, CJI Khehar said, "Between liberty and privacy, there is a concept of dignity. If sharing one's information bothers one's integrity, then it will impinge upon privacy."

The court will hear arguments by the Union on Tuesday.

FIGHT FOR PRIVACY

• The final view of the nine-judge Bench will be a core factor before a five-judge Constitution Bench, which is waiting to decide whether the Aadhaar scheme is a violation of citizens’ right to privacy.
   
• The queries are significant because over 100 crore people have already parted with their biometric details for Aadhaar cards.