Privacy #3: India's Choice (So Far)

In Privacy 3.0, Rahul Matthan wonders why the Indian constitution didn’t have any mention of the right to privacy. Was it an oversight or a conscious choice? He went over the transcripts of the Constituent Assembly Debates to find out.

 

RK Sidhwa’s speech from the time shows he had called for the “secrecy of correspondence be guaranteed”. KT Shah had called for something similar even in 1946 – “privacy of the home”. Prevention of unreasonable search and seizure was almost universally considered necessary by the framers of the constitution.

 

Why then did none of the above, except the point against unreasonable search and seizure, make it to the constitution? The short answer is – path dependence:

“Path dependence is a concept in economics and the social sciences, referring to processes where past events or decisions constrain later events or decisions.”

Let me elaborate on that.

 

Unreasonable search and seizure – almost every Indian, esp. those in leadership positions, had suffered on this aspect throughout British rule. No wonder they were dead against it and hence it made it to the constitution.

 

On the other hand, many of the framers and contributors to the constitution came with hands-on experience of governance under British rule – as lawyers and judges, as policemen, as civil service administrators, as politicians with powers that the British had allowed. Thus, they understood that if you go too far in granting privacy rights to individuals, criminals would exploit it and it would get in the way of law enforcement. You can see countless such points and arguments in the transcripts. A sample:

“A clause like this may checkmate the prosecution in establishing any case of conspiracy or abetment in a criminal case and might defeat every action for civil conspiracy, the plaintiff being helpless to… (place) before the court the correspondence that passed between the parties, which in all these cases would furnish the most material evidence.”

 

Over the decades since 1950 when the constitution was framed, there have been several court cases where the question of surveillance v/s privacy rights has come up. No, these aren’t recent cases, limited to the Internet or Aadhar era; they go much farther back. The courts and the legislature have debated whether privacy should be added as a fundamental right. This has always been shot down ever since independence because of the opposing need from law enforcement, national security and increasingly terrorism perspectives.

 

Contrary to what I had assumed, India’s choice on privacy has always been a thought out one. It was not a “miss” at the framing of the constitution. It is a topic that was revisited repeatedly post-independence. And it isn’t something new that popped up because of Aadhar or the Internet era Big Data.