Can the right to privacy be ‘traded-off’ for access to a better standard of living? - Rebutting the arguments made in the 2019 Economic Survey

In this post, we shall discuss one recommendation made in the Economic Survey of 2019, which was published in July last year. This recommendation dealt with using data as a ‘public good’, and it was simultaneously assumed that the poor will be willing to trade-off their privacy for access to a better standard of living. I shall rebut this assumption, and shall argue that ‘trading-off’ the right to privacy for access to a better standard of living lacks constitutional basis.

Background: The arguments and assumptions made in the 2019 Economic Survey

The Economic Survey of 2019 contained a specific chapter (Chapter 4) dedicated to the use of personal data - for effective delivery of social welfare schemes and government services. This Chapter was titled as -‘Data of the people, by the people and for the people’. Before discussing what the Survey argued, it is important to keep note that the Economic Survey as a document is only analytical and recommendatory in nature, and does not bind the government in any manner. However, the arguments made in the Survey merit discussion - as they give indications of the direction that the Government may take in future.

The authors of the survey argued that data should be used as a ‘public good’ – to ensure effective delivery of welfare schemes and services. They argued that existing data is ‘scattered’, and the government must merge and integrate different data-sets through tools such as Aadhaar. While proposing to use data as a ‘public good’ by merging and integrating different personal data sets accessible to the Government, the Survey made two broad assumptions.

First, the Survey assumed and concluded that a sufficient legal framework already exists to safeguard privacy. This assumption is majorly flawed – as if India already had a sufficient framework to safeguard privacy, there would have been no need for a Personal Data Protection Bill. The second assumption made in the survey was that the poor would be willing to ‘trade-off’ their privacy for access to a better standard of living. It was stated that the ‘elitist’ notion of privacy should not be imposed on the poor, who desire access to a better standard of living. It is this assumption that merits further scrutiny.

I aim to make three arguments below, which are as follows: (i) it is incorrect to assume and conclude that the poor do not value privacy, and are willing to trade-off privacy for access to a better standard of living; (ii) rights should not be categorized as ‘elitist’ in nature, as their scope and conception may vary with changing times; and (iii) ‘trading-off’ or ‘waiving’ the right to privacy for social welfare does not have a constitutional basis.  

Do the poor value their privacy?

Under Part III of the Indian Constitution, certain fundamental rights such as Article 19 are available to citizens, while other fundamental rights such as Article 14 and Article 21 are available to all persons. As held by the 9-judge bench of the Supreme Court in the KS Puttuswamy decision, privacy is a fundamental right that is intrinsic to individual liberty, dignity and autonomy. The right to privacy flows from Part III of the Constitution, and akin to the other rights that have read into Article 21, is available to all persons. This means that the right is universal in nature, and does not in any way hinge on the economic status of a person.

Now, to what extent the poor value their privacy when compared to other sections of society is subjective. Persons residing in slums and villages also try to safeguard themselves from unwarranted intrusion or stigma – which are facets of the rights to privacy. While the poor may not have the means to enforce this right when compared to other privileged sections of society, it is incorrect to make a blanket claim that they do not value the same.

The fallacy with viewing rights as elitist in nature

It is fallacious to view rights as ‘elitist’ in nature, as the scope and conception of a right may vary with changing times. This can be illustrated by referring to the history of the right to property in India, which was initially a fundamental right. But, through the 44^th Amendment of the Indian Constitution, the right to property was deleted as a fundamental right, and was relegated to the status of a legal right under Article 300A.

Post- independence, during the Nehruvian era, it was argued that the fundamental right to property worked solely to the benefit of the rich landlords and zamindars, who invoked it while challenging land reform legislations. It was argued that this fundamental right only acted as a hindrance to implementation of legislations aimed at land redistribution, as it gave a tool to the zamindars to challenge the usurpation of their property by the State.

But, over the years, the right to acquire and hold property has become most significant for destitute farmers, who are often deprived of their land (which was their only means of livelihood) when it is acquired by the State for industrial and infrastructure purposes. Unlike the situation in the 1950s, the right to hold property is today most valued today by the poor farmer – who loses his land to State acquisition. The nature, scope and conception of a right may hence vary with changing times, which is why all fundamental rights are universal by their very nature, and cannot be conceptualized as ‘elitist’ or solely for the privileged.

Does ‘trading-off’ privacy have any constitutional basis?

‘Trading-off’ privacy for access to a better standard of living implies a ‘waiver’ of the right to privacy. But, as the Supreme Court held in Basheshwar Nath v. CIT, fundamental rights conferred by Part III cannot be waived. Although this decision was in a different context, it’s holding with respect to non-waiver of fundamental rights is also applicable to the right to privacy. Let us take two examples to illustrate this.

Let us first take the illustration of a women named ‘X’, who enrolls for an Aadhaar number. When X enrolls for an Aadhaar number, she is not ‘waiving’ or giving up her privacy. She is only sharing some personal information with the State. She still continues to have privacy over the data that is shared, and can file a legal claim if there is unauthorized use or sharing of her data.

Let us take another example. When X downloads Whatsapp, the application collects a certain amount of personal data. X parts with this information to gain access to the service provided by Whatsapp. X continues to retain privacy over this data, and is entitled to a legal remedy if Whatsapp shares the data to a third party in an unauthorized manner. These two examples illustrate that when we part with our personal data, we do not automatically waive our privacy over this data, which continues to be safeguarded.

This can be further buttressed by referring to the decision in District Registrar v. Canara Bank, which concerned whether a customer had a right to privacy over financial records that were held by the Bank. It was held that the right to privacy belongs to people and not places. This means that as long as the data belongs to the person, there shall be a right to privacy over such personal data. The place where the data is located or whether the data has been handed over to a third party is of no relevance. This case also illustrates that parting of personal data does not imply an automatic waiver of privacy.

Hence, creating a dichotomy between privacy and access to a better standard of living lacks a constitutional basis. When the poor give their personal data to the State, they do not ‘trade-off’ their privacy for access to a better standard of living. They continue to have a right to privacy over their data. For the reasons pointed out above, if the State were to use data as a ‘public good’ for social welfare purposes, it has a constitutional obligation to do so in a manner that safeguards different aspects of privacy. We must accordingly avoid falling into the trap of creating a conflict between privacy and social welfare, as both can mutually coexist.

(The discussion in this post shall serve as the foundation for our subsequent discussion regarding whether there has to be a trade-off or a prioritization between right to privacy and right to health, during the prevalence of the Covid-19 pandemic)