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Is there a fundamental right to privacy in the digital age? Notes from the SFLC.in debate


Notes from an inter-college debate that was held at the Jindal Global Law School by SFLC.in, looking into whether there is a constitutional right to privacy (the Indian government is arguing in the Supreme Court that there isn’t one), and whether mass surveillance is inevitable. Paraphrased notes on unique points made:

Is Privacy a fundamental right?

– “What is a fundamental right? It’s something that is non-derogable, except under specific circumstances. It’s something which is available against the state itself. That’s what it makes different from every other”…”With technology, it’s impossible for the judiciary to even look into it because it’s always evolving. Founding fathers of the constitution decided against including the right to privacy as a fundamental right” – Aditya Garg, NLU Delhi

– “What is a fundamental right? You prioritize the individual over the state. It impedes with the functioning of the government as carrying out the duty of protecting citizens. This is where you go ahead and say that it is so intrinsic that at no point can the government can intervene into that right. You can put reasonable restrictions, and that is in the interest of national security. It doesn’t happen in all cases. This restriction (on the right to privacy) will happen all the time, and it’s all pervasive, which is why it cannot be a fundamental right.” – Ishita Seth, Venkateshwara college

– “The ordinary citizen is willing to give up his freedom of expression for money, but this doesn’t mean that the right isn’t fundamental. Security of individuals is not something that perverts the idea of the security of the state.” – Vineeth, St Stephens

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– “There are laws that are paternalistic in nature, and there are laws that put moral limitations. The idea that the right to privacy is a natural right: it’s a qualitative problem. How do you define what is a natural right or not? There is no objectively verifiable way of defining this. The argument that privacy is a natural right is just rhetoric, and problematic. How surveillance affects the being: surveillance and monitoring lead to disciplining the body, curtails right and wrong, and gives state the power to structure society the way they want to. It gives authoritiarian power. Fundamental rights are not natural rights, they’re rights given to individuals against the state, so that the state can’t take them away. They are dominated by certain power structure. On that basis, if you allow the state to discipline the body, you’re providing a large amount of authoritarian power to the state. The same scenario exists in prison as well, and in those pathological cases, it is fine. Surveillance gives this right in all scenarios. We do need an infringement to a certain extent, and we agree. There can be exceptions, such as in article 19. There is a distinction between private and public sphere. In cases where you want to infuse certain morals, the state shouldn’t be allowed” – Rohit, Jindal Global Law

– “A constitution is a living document. This is because the framers have limited forsesight (Editor: they didn’t include right to privacy as an explicit fundamental right). In light of the current technological advancements, I would content that the right to privacy is a fundamental right.” – Devdatta, NLU Delhi

– “The minute you make it a fundamental right, it also sends out a state mandate that we think it’s important to have this right. Anonymity doesn’t lead to self actualization, and we don’t want to tell people that it does” – Binil, St Stephens

– “The government is turning authoritarian. They block sites. That is offensive, is being defined by the government. If you give extreme powers to government, allows them to destroy tour freedom. There is a need for an active deterrent against a paternalistic state. The fundamental right adds a deterrent to big infringements; for example, there is an action from court if freedom of speech is infringed”…”The state has to guarantee the right to privacy, so as not to infringe that right, since it knows that the court is the custodian, and can combat the state and their dictatorial tendencies.” – Masha, Venkateshwara college

Fundamental rights can be suspended

“The state gives rights. In a Marxist state, the state does not give to property to citizens. India is now facing issues where we believe that right to privacy is problematic. Why is it that at times of war, all fundamental rights are suspended? Because the state believes that till the time it cannot guarantee the right to security, it cannot guarantee fundamental rights.” – Rishabh Ahuja, Ramjas College

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Fundamental rights can exist with restrictions

“There are reasonable restrictions on some fundamental rights. Does that mean we don’t give them that right to begin with?” – Dhruv Sethi, Ramjas College

Right to privacy can exist without it being a fundamental right

…”Right to privacy has to be protected by an ordinary legislation. The boundries of the right to privacy have to be created. The constitution can only guarantee you one line, and not get into the specifics of it”…”Privacy can be protected without making it a fundamental right.” – Aditya Garg, NLU Delhi

The importance of privacy and anonymity

“I want to say something, but might not want to say it out aloud. The moment anonymity is taken away from me, I won’t say it.”…”The moment you go ahead and talk about things such as the government (able to surveille people)” this leads to conformity, and “evolution of society leaves no scope for evolution without an aberration” – Dhruv Sethi, Ramjas College

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“Privacy is a vague right, and its contours are not defined. There are 3 aspects: Arbitrary and unlawful surveillance; Bodily information; Personal information.” – Devdatta, NLU Delhi

“The idea of suspecting everybody without giving a reasonable reason to do so is what is the issue”…”It’s a two way street: Security and fundamental rights result in a tradeoff (truecaller taking your data for giving you others’ data; instagram being allowed to sell your photos). You need to take into account the importance of dignity, (which is that) you can have social interactions with big brother not watching over you all the time.” – Dhruv Sethi, Ramjas College

“If I engage in nechrophilia, I’m doing an illegal activity even in the confines of my own house, and the government is going to punish me for it. In cyberspace, if i write a long post on Facebook and it is seditious, and if only my friends can access it: the issue is the traction it can get. Nothing can remain private.” – Ishita Seth, Venkateshwara college

– Question: You get benefits of giving privacy away to companies. Give privacy away to a country: where do the benefits come from?
“The price I pay to companies by giving my privacy away is that I want services to be more customized to me. If I’m giving it away to a country, it can make better policy and provide better facilities.” – Binil, St Stephens.

– “The potential for discrimination is the sole reason why people have passwords and encryption. People would feel infringed, and the moment that happens, your right to be free would be impacted”…”the right to association, expression become meaningless. It reduces your breathing space in society. It also leads to conformity in demeanor. We don’t think that government officials have enough fear in them to abide by the rules. We see this in multiple aspects. People don’t want to share their appeals: it doesn’t mean they are good or bad, but that they don’t want to disclose” – Kumar Kshitij, Bhagat Singh College


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– “What people do in their private lives also affects larger issues. When you allow people to live in their private spheres, you can expand the definition of private lives. The right to dignified life can only be provided if you give this privacy. Only the person who is up to an illegal activity, only that individual is affected.” – Rishabh Ahuja, Ramjas College


Important: This was a debate, with people speaking for and against the motion, so it’s not necessary that the speakers hold the point of view attributed to them. Some of them later mentioned that they don’t. Also, this text is significantly paraphrased and edited to retain key, unique points made by speakers, so some context may have been lost in editing. The idea behind this post is to showcase unique points of view on privacy.

Image Credit: Flickr user Scott Sterbenz

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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