The following note looks briefly at different sides of the privacy debate, and asks the question whether a Data Protection law is enough privacy protection for India.
In a recent article, Rahul Matthan explained how many threats to personal privacy come from a lack of data protection laws – particularly in the context of the UID – and he thus urges India to pass a law that is focused on data protection. He said, "We don't question this lack of personal space. It is part of the compromise we make when we choose to live in India." Though his argument has a surface appeal, there are also many cases emerging in the news today that suggest that India is concerned with a much broader scope of privacy than just data protection. In the DNA, a news article covered a recent court decision that concluded that watching pornography at home is not an obscenity and does not qualify as a public exhibition, even when there are visitors to the home. In that case, police arrested persons who hosted a party under section 292 (obscenity) of the Indian Penal Code for watching pornography and housing strippers. The judge ruled that the activities that were taking place were done in private and thus did not amount to an offense under section 292. This is an important decision about the protections of spatial privacy being afforded to individuals. The bungalow was considered a private space, and the computer a private possession. In other words, India does have a greater understanding of privacy and the need for its protection, and it extends beyond data protection. In another news item, the Hindu reported that 5,000 to 6,000 phones are tapped on average daily. The article speculated that this number could increase in response to the 2G scam and other scams that are coming out. The type of privacy violation that wiretapping poses is likewise not a question of data protection, but of how a nation guards against an unwanted invasion of personal space and when security takes precedence over privacy. Are Indian citizens willing to subject themselves to phone taps to try to eliminate – or at least minimize – the number of scams that are occurring? In yet another news item, it was reported that in the North, councils are attempting to ban the sale of cell phones to unmarried women to help prevent unsolicited affairs with members from different castes. This again raises questions not of data protection or informational privacy, but of personal privacy. How will phone companies know that a woman is married? Will parents suddenly begin regulating their daughters' phones? Does an existing legislation afford protection to women in this situation? Though data protection is a component of privacy, it is only one component. There are many definitions of privacy, and privacy in itself is somewhat of a difficult word to define, but India should recognize that there are privacy protections and privacy debates that extend beyond data protection. It is too easy to characterize India as large and communal and overlook these important questions.
Returning to Rahul Matthan's article, Matthan says, "The vast majority of our country that remains under-served by the government will gladly exchange personal privacy for better public service." I was particularly intrigued by this statement, because it suggests that privacy is an expendable right, and that government service cannot improve without privacy compromises. The logical extension of this concept is that privacy is not a fundamental right but only a consumer issue, and that policymakers can always trade off privacy in exchange for better public benefits, for better security, and for cheaper products. A legal system needs to address the case at hand, but it needs to be mindful of the larger consequences as well. There is no doubt that the UID project demands a data protection law, but India is facing questions of privacy that extend beyond data protection, and the steps that are being taken to answer those questions need to be applauded and brought into the current debate. If we legislate away rights, we must do so by weighing the cost and finding it acceptable.