In 2014, the Attorney General of India argued before the Supreme Court of India that there may be no legal right to privacy in India. In response, the Supreme Court decided to set up a Constitutional Bench clarify whether the right to privacy exists in India. This could mean several steps backwards for what is already a deeply flawed privacy framework in India.
The history of the right to privacy in India offers interesting context to the the Attorney General’s argument, as do more contemporary reports of the mass surveillance infrastructure being deployed by the Indian government. Whenever questioned about its surveillance programs and personal information databases, the Indian government responds with reassurances about respecting the right to privacy. However the existing privacy safeguards offered by the Indian legal system are weak, and may be undermined further once constitutional bench looks into them.
The flaws in the Attorney General’s argument become apparent when held up to the history of the development of privacy norms in India, from the drafting of the Constitution onwards. The Supreme Court has been developing privacy jurisprudence in response to changing modes of surveillance but has not yet created new norms for the period in which phone-tapping has given way to the monitoring of online information. It has also never looked at the role of private online intermediaries in facilitating government surveillance.
Indian jurisprudence has only accounted for targeted surveillance so far. It remains to be seen whether mass surveillance will result in new and better privacy safeguards, or whether the surveillance-privacy balance will shift to weigh heavily and irrevocably in favor of the state.
Research Director, Centre for Communication Governance
National Law University Delhi
Tuesday, April 12, 2016
12:00 PM – 1:00 PM
UC Davis School of Law, King Hall Rm 1301
Chinmayi Arun is Research Director of the Centre for Communication Governance and Assistant Professor of Law at National Law University, Delhi. She teaches Internet Governance, privacy and media policy. She is the research coordinator of the Oxford India Media Law Research Project, a member of the Multi-stakeholder Advisory Group formed by the Government of India for the India Internet Governance Forum, and one of the academic experts for the Internet & Jurisdiction Project’s Observatory. She works with media regulation and internet governance, particularly in the context of the rights to free speech and privacy.
Arun has studied at the NALSAR University of Law, and London School of Economics and Political Science (LSE). At the LSE, she read regulatory theory and new media regulation, and was awarded the Bernard Levin Award for Student Journalism. She has worked with Ernst & Young and AZB & Partners, Mumbai in the past, and has taught at the West Bengal National University of Juridical Sciences where she introduced courses on regulatory theory and communication regulation.
She is lead author of the India country report for the Global Network of Internet and Society Research Centers’ research project on online intermediaries, as well as the India reports in Freedom on the Net Report for the years 2014 and 2015. Her academic writing has tended to focus on freedom of expression, intermediary liability and privacy.