~By Inderjit Badhwar

“Recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone’ … Numerous mechanical devices threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’”

Does this read like an observation made in the media by one of India’s liberal commentators with reference to the recent hearings in the Supreme Court on the compulsory linking of the biometric Aadhaar card with income tax returns?

It is not.

These words were written by a young American lawyer, 34-year-old Louis Brandeis 26 years before he would join the Supreme Court and turn into a legal legend. The invention he referred to, wrote Leah Burrows, in an article for BrandeisNOW in 2013, is the portable camera and in the context of the business methods of celebrity journalism and snooping.

Brandeis and his law partner Samuel Warren published “The Right to Privacy” in the ‘Harvard Law Re-view’ in 1890. It has been universally hailed as the pioneering dissertation advocating a legal right to privacy.

Nearly 30 years later, in 1928, with the popularisation of the telephone and the invention of wiretapping, Supreme Court Justice Brandeis scripted a landmark dissent against the Chief Justice’s opinion, in which Brandeis, opposing eavesdropping, asserted the sanctity of the constitutional right to privacy (Olmstead v. United States). 

Burrows quotes Steve Whitfield, the Max Richter Professor of American Civilization: “First as an attorney, then as a jurist, Brandeis was the single most import figure in the history of the concept of privacy.” Brandeis was also the first jurist to recognise the threat technology posed to citizens.

It’s like a déjà vu in the Indian Supreme Court where Senior Advocate Shyam Divan has argued: “My fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life. As long as my body is concerned, the State cannot expropriate it without consent, and for a limited purpose.”

The debate stems from two writ petitions against amendments to the Income Tax Act filed by CPI leader Binoy Viswam, represented by Arvind Datar, the other by retired Major General Sudhir Vombatkere and Dalit activist Bezwada Wilson, represented by Divan. Section 139AA, introduced through the Finance Act, 2017, provides for mandatory quoting of Aadhaar or enrolment ID of Aadhaar application form for filing of I-T returns and making application for allotment of PAN with effect from July 1, 2017.

Divan argued this was intrusive and violative of individual privacy and rights which have been expanded under Article 21 of the Indian constitution. Attorney General Mukul Rohatgi countered Divan’s “bodily intrusion” argument by asserting that there was no absolute right of a citizen over his own body. If this was the case, then it would deny the State the right to impose the death penalty or restrictions on suicide and drug abuse or fingerprinting of criminals.

US Chief Justice Taft, who had written the majority opinion against which Brandeis had dissented, defended the decision by asserting: “By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the (Fourth Amendment) cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched. We think, therefore, that the wiretapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment (safeguarding the right to privacy and freedom from unreasonable searches).”

 “The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping,” Brandeis wrote in Olmstead, (a case in which the government illegally wiretapped the conversations of a suspected bootlegger).

“Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”

Today, Brandeis’ words sound prophetic, writes Burrows. “Brandeis was ahead of his time in his awareness of the role technology played in evolving legal standards,” explains Frederick Lawrence, a noted legal scholar specialising in First Amendment (freedom of expression) issues.

Burrows does, however, acknowledge that it is difficult to speculate how Brandeis would respond to the American National Security Agency’s (NSA) massive electronic data mining programme, known as PRISM. On the one hand, Brandeis would want to protect citizens from intrusion: “He would be concerned about the accumulation of data that might be used to compromise individual privacy.”

On the other hand, Brandeis might have difficulty reconciling privacy and security. “Brandeis could not have anticipated the right of privacy would be pitted against national security and the challenge of terrorism. The stakes are considerably higher today than in Brandeis’ time.”

Also, the expectation of privacy has changed since Brandeis’ era. “Thanks to Facebook, Foursquare, Twitter and other social media sites. Today, many people voluntarily and actively give up their right ‘to be let alone.’”

Burrows quotes from an interview with Dan Breen, a senior lecturer in legal studies: “He (Brandeis) would have a hard time in the Internet age, where there is nothing but information and no separation between your life and someone else’s. What is certain, however, is that Brandeis would have welcomed a robust debate about privacy in the digital age. Brandeis believed in the value of experience. He would think that a genuine debate would be the best way to handle this situation.”

Fast-forwarding to the recent Indian Supreme Court debate, Justice AK Sikri (who was on the bench with Justice Ashok Bhushan) responded to Rohatgi: “You cannot raise the spectre of crime to say that we will treat everyone as an accused. The liberty of individuals is to be maintained. We live in a society and we have to live with dignity. You cannot stretch this theory to that extreme. Isn’t there a balance between dignity and state interests?”

The main thrust of Divan’s argument is contained in these lines:

 “This is fundamentally altering the relationship between State and individual. We gave birth to the State. We are sovereign. Will we be put on an electronic leash for our entire lifetimes? If from birth onwards, the State knows everything about you, will the relationship between State and individual remain the same?” Also:

“Biometric information, specifically finger prints and iris scan are intimate parts of a person’s body. They belong to the person, not the State. According to John Locke, ‘Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person’, and Salmond reminds us that he speaks of a man’s right to preserve his own property i.e. his life, liberty and estate. As Peter Benson notes in Philosophy of Property Law: ‘The right of bodily integrity is, first of all, a right, i.e. it refers to the fact that each individual has the rightful exclusive possession and use of his or her own body as against everyone else.’”

The debate and the arguments are for real. What is truly puzzling is why these critical national issues of constitutional importance now being argued in the apex court, sailed through parliament as amendments to the Finance Bill without any red flags and nary a peep of protest.

      —Inderjit Badhwar is Editor-in-Chief, India Legal. He
can be reached editor@indialegallive.com