Privacy in the digital age faces challenges from hackers, private companies and government, and the judiciary has to deal with balancing the right to privacy with other rights and supplement existing legislative frameworks, Supreme Court Judge D Y Chandrachud said on Sunday.
Justice Chandrachud, during a panel discussion on the 'Role of Judiciary in Protecting Privacy of Citizens in the Internet Age', said the challenges from these three "actors" present a range of concerns.
"The challenges to privacy are presented by three key actors - (i) hackers; (ii) private companies; and (iii) the government. This presents a range of concerns: First, there is a possibility of serious data breach and the misuse of personal information," he said.
"Second, vast silos of data may be used to profile people and to discriminate against vulnerable groups. Third, there is a chilling effect on free speech and disclosure of information," the apex court judge said.
Justice Chandrachud said that the issue is about how "we as judges can preserve autonomy and informational self-determination of individuals in an age where technology governs every aspect of our lives. Or is privacy an illusion?".
He said when a person searches for a book or a destination on the internet, the screen is instantly flooded with appealing pop-up advertisements.
"If you search for an idea, a multitude of ideas confront you on the screen. The digital world has been ushered in at a pace which the incremental change of judicial decisions can scarcely match. Our Constitution protects the right to personal freedom, human dignity and liberty," he said.
Justice Chandrachud pointed out that in today's world, every individual identity is viewed in terabytes of information and every individual is viewed as a collection of data represented by activities on the internet like shopping preferences, social media patterns, geographic location and personal biometric information.
"This defines two new horizons: the first is of big data - data aggregation, which like 'death by a thousand cuts', is the collection of unconnected data to map the identity of the individual.
"This has the potential to seriously threaten the rights of individuals to keep their personal and sensitive information private and to control how their information is used," he said.
Justice Chandrachud said the second horizon is of artificial intelligence, which comprehends machine learning analysis of political beliefs, religious affiliation, race, ethnicity, health status, gender and sexual orientation.
"Our individual data is aggregated and disaggregated to sort, score, classify, evaluate and rank people. How comfortable are we with artificial intelligence telling us whether an offender who seeks bail is likely to be a repeat offender?" he said.
Justice Chandrachud, who is in line to become the Chief Justice of India in 2022, said globally good governance is witnessing an increasing reliance on digital technology to aid in the delivery of welfare services with the active support of the citizenry.
Judges needs to see how to apply the standard of proportionality which was formulated in a pre-digital age amid the complexities of a digital age, he said.
"In examining the judicial interface with privacy protection in the digital age, two preliminary points need to be highlighted: The dawn of the digital age is not in itself perilous. It presents avenues for mass improvements in social life. The issue is not the collection of data, but its use and misuse; and how do courts balance the right to privacy with other rights and supplement existing legislative frameworks?" Justice Chandrachud said.
He referred to a Kenya High Court verdict that halted the implementation of the national biometric identification system until the government implemented a comprehensive data protection framework.
"Chief Justice Bryan Sykes of the Supreme Court of Jamaica was a part of the bench that struck down the Jamaican National Identification and Registration Act and outlined in his opinion the dangers of merging silos of information to create wholly new information," he said
Recalling the 2018 Aadhaar verdict in which a five-judge constitution bench had by majority upheld the constitutional validity of the Aadhaar Act, Justice Chandrachud said, "As the lone dissenter in that bench, I draw solace from the recently delivered judgment of Justice Sykes".
Later in his welcome address for President Ram Nath Kovind, Justice Chandrachud said challenges posed by technology, climate change and terrorism, transcend individual jurisdictions.
Highlighting that "justice knows no borders", he said, "Collegiality is at the core of judging."
The Supreme Court had in a landmark verdict ruled that even the office of its chief justice is subject to a citizen's right to information, Justice Chandrachud said.
"The doors of justice were thrown open, not just for those seeking justice, but also to those seeking to scrutinise the court," he said.
The cross fertilisation of ideas is evident in the judgments of courts across the world relying upon the affirmation of LGBTQ rights by the Indian Supreme Court, Justice Chandrachud said.
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