7/23/2017 Why it may make sense to apply privacy rights on a case-by-case basis - The Economic Times

ET Home News Politics and Nation Search for News, Stock Quotes & NAV's

04:05 PM | 21 JUL EOD 50 ( ) (/10 / CREATE - CHOOSE

LANGUAGE
PORTFOLIO
MARKET STATS 32,028 124.49 9,915 41.95 28,542.0 211.0 64.31 -0.12 KAN

Why it may make sense to apply privacy rights on a case-

by-case basis
BY KUNAL TALGERI, ET BUREAU | JUL 23, 2017, 07.48 AM IST Post a Comment

The right to privacy will, therefore, necessarily, have to go through a process of case by
case development. Justice Mathew (Govind v State of Madhya Pradesh, AIR 1975 SC
1378)

The quotation was cited in the chapter Constitutional Basis for Privacy in the Report of
the Group of Experts on Privacy, chaired by AP Shah, former chief justice of Delhi High
Court, in October 2012.

The AP Shah report got lost in the melee as the Central government changed, as did the
mood related to Aadhaar, the nationwide unique identification project. From enrolment
being voluntary at inception in 2010, the National Democratic Alliance (NDA) government The privacy concerns are valid, and largely centre on
has called for it to become mandatory. This change of heart is crucial to why Aadhaar has the imminent possibility of profiling citizens across
government departments.
become the bedrock of the privacy debate, perceived as a threat, with multiple petitions
before the Supreme Court, where the government is taking the stand that the right to
privacy is not a fundamental right. Related
Privacy right vital to civilised existence
The petitioners are taking the view that there is an implicit right to privacy under Article 14 but it is subject to reasonable
restrictions
and Article 21 of the Constitution, says Rahul Matthan, partner at Trilegal, a law firm in
Bengaluru, who has been involved in digital policy initiatives. Aadhar: Privacy is not a unidimensional
concept

But Matthan adds: Aadhaar has raised the temperature of the debate but, even without Aadhaar: Why trusting the State with
protecting data is no big deal
Aadhaar, we would have needed a privacy law.

Big Change:
The privacy legislation is expected to be vital in the new Attorney General of India KK The end of Five-Year Plans: All you need to know
Venugopals arguments on Tuesday when the nine-judge bench meets. Its line: privacy
should not be elevated to a fundamental right, as the government is in the process of enacting a privacy law.
Recommended By Colombia
Build wealth the SIP way The best local budget
with FundsIndia! nightlife destinations
Fundsindia LiveInStyle

The privacy concerns are valid, and largely centre on the imminent possibility of profiling citizens across government departments. Says
a source who has worked closely with the Unique Identification Authority of India (UIDAI): If profiling is a concern, then the concern
should not be about Aadhaar. Every government department, where you use your Aadhaar number, already has your records. And
those departments have had the wherewithal to create a profile even before Aadhaar.

Protecting Profiles
Even the AP Shah Report on Privacy took note of this digital context in 2012: Information is, for instance, beginning to be collected on a
regular basis through statutory requirements and through e-governance projects.

This information ranges from data related to health, travel, taxes, religion, education, financial status, employment, disability, living

http://economictimes.indiatimes.com/news/politics-and-nation/why-it-may-make-sense-to-apply-privacy-rights-on-a-case-by-case-basis/printarticle/597 1/3
7/23/2017 Why it may make sense to apply privacy rights on a case-by-case basis - The Economic Times

situation, welfare status, citizenship status, marriage status, crime records, etc.

Justice Mathews words on applying privacy rights case by case are relevant to profiling. While it can cause immense untold harm in
cases of no consent, it can also benefit cases where beneficiaries apply for, say, microcredit.

The profiling may be necessary for a significant set of the unbanked population. It is something the Ratan P Watal Committee on Digital
Payments spelled out in its December 2016 report: enabling the creation of a robust credit history, to push microcredit to low-income
households and small businesses.

If this ecosystem has to grow for the needy, Aadhaar is proving to be the lubricant: the unique ID is the first authentication factor. The
fingerprint impression or onetime password on the users mobile phone is the second authentication factor.

This data can be used to improve the lives of people, and this can happen only if the individual not the state nor corporate entities
is empowered to take decisions related to the use of this data (that is, to own this data), says an iSPIRT volunteer, who requested
anonymity.

iSPIRT, or the Indian Software Product Industry Round Table, has advocated India Stack, a project to create a unified software platform.
Every ministrys IT systems will communicate with each other because of APIs (application programming interface). And this is where
privacy becomes vital to protect user data and profiles.

In this scenario, I am more concerned about the ecosystem that Aadhaar will create than Aadhaar, says Matthan. As people rely less
on paper like signed photocopies of passports and the ecosystem becomes digital (like Aadhaar-based authentication services),
the fear is that without a privacy law the digital ecosystem will be vulnerable.

Digital Format
Matthan cites the example of DigiLocker in India Stack, which is a set of APIs that allows governments, businesses, startups and
developers to utilise Aadhaar-based digital infrastructure for paperless and cashless service delivery. DigiLocker is envisaged to have all
user documents in digital format.

Matthan explains the pros and cons thereof: DigiLocker will do away with the need to get physical copies of all your documents (PAN
card, ration card, etc). Users can give consent-based access to the DigiLocker for verification, and all this will happen automatically. But
the risk is that if there isnt enough security in place, there will be no liability for the harm caused (in case of a breach). The privacy law is
absolutely important. Then, the citizen can hold service providers accountable in an API-driven ecosystem for violating privacy, he
adds.

Equally, making privacy a fundamental right could become a deterrent to the profiling-based economy which can benefit the poor, which
is why Justice Mathews words are significant: to apply privacy rights case by case.

For privacy conversations, think about an individual, says the iSPIRT volunteer. What is the harm or benefit or impact it has on an
individual? But to measure that, the privacy legislation is vital. Also, we (in India) have to figure out what we want from our government
on privacy. In Europe, take Estonia, a very digital country. There is an e-governance law. Government can never ask you for information.
It is sort of exciting, except it means, inside the government, they are sharing everything.

Its a conversation Matthan once had with UIDAIs founding-chairman Nandan Nilekani way back in 2010, before enrolment began: My
position then and now has been that when we are moving into a data-driven world, we need to have a greater focus on privacy. My
concern is to secure the entire ecosystem data processing, data security rather than focus only on identity theft.

Even as the Supreme Court bench decides on whether privacy should be a fundamental right, the government would do well to revisit
the AP Shah Committee Reports nine principles for the other cues, and frame the data protection and privacy law. The common thread
through all these (SC) judgments of the Indian judiciary has been to recognise a right to privacy, either as a fundamental right or a
common law right, but to refrain from defining it in iron-clad terms, it said, back in 2012.

Stay on top of business news with The Economic Times App. Download it Now!

Live Market Industry About Us

http://economictimes.indiatimes.com/news/politics-and-nation/why-it-may-make-sense-to-apply-privacy-rights-on-a-case-by-case-basis/printarticle/597 2/3
7/23/2017 Why it may make sense to apply privacy rights on a case-by-case basis - The Economic Times
News Newsletters Create Your Own Ad
Portfolio Commodities Advertise with Us
Powered by
Mobile Speed Terms of Use & Grievance Redressal
Live TV Blogs Privacy policy
Biz Listings RSS

Download it from Download it from Download it from

FOLLOW US APP STORE GOOGLE PLAY Windows Store

Other Times Group news sites Hot on the Web

| | Pune Mirror | Bangalore Mirror | Ahmedabad Mirror SBI Share Price | Income Tax Return | GST | ONGC-HPCL Merger | NPS | Sensex
| ItsMyAscent | Education Times | Brand Capital | Mumbai Mirror | Times Now |
Indiatimes | | | | Go Green | AdAge India
| Eisamay | IGN India | NavGujarat Samay | Times of India | Lifehacker | Gizmodo |
Samayam Tamil | Samayam Telugu | Miss Kyra | Bombay Times | Filmipop
Living and Entertainment
Timescity | iDiva | Entertainment | Zoom | Healthmeup | Luxpresso | Gadget Reviews |
Titanium & Platinum Credit Card | Online Songs | MensXP | Hotels | Travel
Destinations | Cricbuzz | Recipes | Gaana | Happytrips | Getsmartapp
Today | Gold Rate Today | IFSC Code | Sensex Live | RIL AGM | RBI | Jio Phone
Services
Book print ads | Online shopping | Matrimonial | Astrology | Jobs | Tech Community |
Property | Buy car | Bikes in India | Free Classifieds | Send money to India | Used Cars
| Restaurants in Delhi | Remit to India | Buy Mobiles | Listen Songs | News |
TimesMobile | Real Estate Developers | Restaurant Deals in Delhi | Car Insurance |
Gadgets Now | Free Business Listings | CouponDunia | Remit2India | Techradar |
AliveAR | Getsmartapp App | ETMoney Finance App | Feedback

Interest Network
itimes

In Case You Missed It

Congress expelled me 24 hours ago, says rebel Shankarsinh Sushma Swaraj is lying, India should get ready for a military
Vaghela confrontation: Chinese media

Ram Nath Kovind has heft to deal with opposition Dont have selective amnesia on lynchings: Union HRD
minister Prakash Javadekar

US 'looks forward' to working with President-elect Ram Nath Meet India's new President Ram Nath Kovind
Kovind

Presidential elections: Ram Nath Kovind leading after first Opposition raises slogans on farm issues in Lok Sabha, forces
round of counting. Here's all the details adjournment

While Indian stocks go through the roof, in Pakistan they go Has eating out become cheaper after GST? Well, it actually
from best to worst depends on what you eat

TCS sees biggest drop in quarterly PAT in 2 years: 5 key Send 'gau rakshaks' to fight terrorists in Kashmir: Shiv Sena to
takeaways PM Modi

Copyright 2017 Bennett, Coleman & Co. Ltd. All rights reserved. For reprint rights: Times Syndication Service

http://economictimes.indiatimes.com/news/politics-and-nation/why-it-may-make-sense-to-apply-privacy-rights-on-a-case-by-case-basis/printarticle/597 3/3