Why the right to privacy holds negligible mass appeal

 The Supreme Court has elevated privacy by extrapolating some of the original fundamental rights (and clubbing together ideas of home, ownership and digital identity).
The Supreme Court has elevated privacy by extrapolating some of the original fundamental rights (and clubbing together ideas of home, ownership and digital identity).


People may have an intuitive understanding obut don’t see privacy as one of them

Not long ago, a person’s name and phone number would be published in a thick book called the telephone directory, which was distributed to every landline subscriber in the city. If a name was missing or number inaccurate, one rang the telephone company to yell. Telecom was run by the government then; this meant people were shouting at the government for not publishing their numbers for everyone to see. Today, some people shout at the government for not hiding their numbers. How did we get so private?

Even 25 years ago, almost nothing was considered private by most people, barring nudity and acts that required it. Even today, there are tribes that do not consider nudity a private affair, or anything else for that matter. But over the years, the sort of Indians who know what asparagus is, who also invariably know what privacy is, have become acutely concerned about guarding their personal information, chiefly from the government. They are aghast at the Digital Personal Data Protection Act which came to life a few days ago. The Act appears to protect a citizen’s data from private players, but gives government officials access to it, if they can establish a reasonable cause to snoop.

The government already has access to much of our data. The new law allows it to easily interlink various strands of a life, give flimsy reasons to snoop, and indemnify officials who gain access. The law has alarmed some people. This is the end of privacy, they say. To most Indians, however, privacy does not appear to be an issue. Privacy, as a right, does not stir the emotions of regular people. Most of them are probably more agitated by the religious rights of others than conceding private space to the government.

Sophisticated rights have little emotional appeal. Is it because these are culturally alien to India? Or, is it because they need better marketing? Perhaps, but the primary reason why some modern rights are not popular is that they are not natural.

There are two types of rights. Rights from antiquity, and esoteric rights. The former are fundamental ways of being that preceded even the idea of rights. People tend to be serious about these—like the right to live, earn a living, follow a faith, and have a home. These rights have origins in human instinct. Esoteric rights are inventions. Privacy was invented; then marketed. The two types of rights do not come from the same place.

The origin of the right to privacy is not as noble as its effect. It is funny how the news media is among the biggest champions of privacy, because the privacy movement began in a campaign of the American aristocracy to gag the free press. In 1890, lawyers Samuel Warren and Louis Brandeis published an article in the Harvard Law Review called ‘The Right to Privacy.’ It was triggered by a spate of gossip columns about the US urban elite. They complained, “The press is overstepping in every direction the obvious bounds of propriety and of decency… To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle." According to opinion-makers in America, in this essay lies the origin of the privacy movement.

In time, as privacy sought to recruit moral reasons, it couched itself as an individual right against any intrusion. In the digital era, it caught the imagination of a global mono-culture that sought to deny any sort of personal data, even anonymized, to corporations and governments. This movement was driven by a braiding of reasonable fear, psychotic paranoia and megalomania. It was imported to India to fight Facebook and Aadhaar.

Activists assailed Aadhaar as state coercion to collect biometrics. These were the same people who, for a mere tourist visa, gave everything the US embassy asked. To this accusation, their defence was “consent". They claimed they consented to give their information to the US, and not to the Indian government, which coerced them by making banking difficult without Aadhaar. This is a spurious argument. The fact is they were coerced by the US government, too. A visa applicant’s biometrics and considerable personal information are a mandatory requirement.

Like liberty, privacy is not a feral freedom, but a negotiated privilege granted by the state. This is only in practice; in theory, privacy is very lofty.

In 2017, India’s Supreme Court ruled that privacy is a “fundamental right". The term ‘fundamental’ has the sense of a basic instinct; yet privacy is not that at all. In practical terms, a fundamental right is deemed so basic by the Constitution that it is protected even from government action. Privacy is not mentioned in that document because it was written in an era when its status was not so elevated. The Supreme Court has elevated privacy by extrapolating some of the original fundamental rights (and clubbing together ideas of home, ownership and digital identity). But then, can a right that is so new also be ‘fundamental’? I don’t think so.

It makes me wonder if anyone can ever win against the government. We appear to enjoy fancy rights, but there are caveats and caveats. Nothing trumps national interest, and the government holds all the cards to define what is in the national interest. There is something ancient about this, about the inequality of the ruler and the subject. In that way, this injustice seems more natural than esoteric plans to reform it.

The government does understand privacy very well. See how it guards official secrets. Secrecy is state’s right to privacy.

Manu Joseph is a journalist, novelist, and the creator of the Netflix series, ‘Decoupled’

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