In Justice KS Puttaswamy (9J) v. Union of India[1] a nine-Judge Bench of Supreme Court held that the Constitution guarantees the right to privacy. Supreme Court traced the right to privacy to the constitutional ideals of dignity, liberty, and the thread of non-arbitrariness that runs through the provisions of Part III. The scope of the right to privacy discussed in Justice KS Puttaswamy (9J) (supra) is summarized below:
a. The right to privacy includes “repose”, that is, the freedom from unwanted stimuli, “sanctuary”, the protection against intrusive observation into intimate decisions and autonomy with respect to personal choices;
b. Privacy over intimate decisions includes decisions related to the mind and body. Privacy extends to both the decision and the process of arriving at the decision. A lack of privacy over thought (which leads to decision-making) would suppress voices and lead to homogeneity which is contrary to the values that the Constitution espouses;
c. Privacy over decisions and choices would enable the exercise of fundamental freedoms such as the freedom of thought, expression, and association freely without coercion;
d. Privacy is attached to a person and not a space. The scope of privacy cannot be restricted only to the “private” space; and
e. Privacy includes informational privacy. Information which may seem inconsequential in silos can be used to influence decision making behavior when aggregated.
The content of privacy is not limited to “private” actions and decisions such as the choice of a life partner, procreation and sexuality. Neither is privacy merely defined from the point of direct State intrusion. Privacy is defined as essential protection for the exercise and development of other freedoms protected by the Constitution, and from direct or indirect influence by both State and non-State actors. Viewed in this manner, privacy takes within its fold, decisions which also have a ‘public component’.
The expression of political beliefs is guaranteed under Article 19(1)(a). Forming political beliefs and opinion is the first stage of political expression. The freedom of political expression cannot be exercised freely in the absence of privacy of political affiliation. Information about a person’s political beliefs can be used by the State at a political level, to suppress dissent, and at a personal level, to discriminate by denying employment or subjecting them to trolls. The lack of privacy of political affiliation would also disproportionately affect those whose political views do not match the views of the mainstream.
In the specific context of exercising electoral franchise, the lack of privacy of political affiliation would be catastrophic. It is crucial to electoral democracy that the exercise of the freedom to vote is not subject to undue influence. It is precisely for this reason that the law recognizes certain ‘corrupt practices’ by candidates. These ‘corrupt practices’ do not merely include ‘financial’ corrupt practices such as bribery.
They also include undue influence of the voters by an attempt to interfere with the free exercise of electoral right, publication of false information about the personal character of any candidate, and providing vehicles for the free conveyance of electors. The law penalizes practices which have the effect of dis-franchising the voter through illegitimate means.
Information about a person’s political affiliation can be used to dis-enfranchise voters through voter surveillance. Voter databases which are developed through surveillance identify voting patterns of the electors and attempt to interfere with their opinions based on the information.
For example, the data of online purchase histories such as the books purchased (which would indicate the ideological leaning of the individual), clothing brands used (which would indicate the social class to which the individual belongs) or the news consumed or the newspapers subscribed (which would indicate the political leanings or ideologies) can be used to draw on the relative political affiliation of people.
This information about the political affiliation of individuals can then be used to influence their votes. Voter surveillance gains particular significance when fewer people have attachments to political parties.
At a systemic level, information secured through voter surveillance could be used to invalidate the foundation of the electoral system. Information about political affiliation could be used to engage in gerrymandering, the practice by which constituencies are delimited based on the electoral preference of the voters.
Informational privacy to political affiliation is necessary to protect the freedom of political affiliation and exercise of electoral franchise. Thus, it follows from the judgment of Supreme Court in Justice KS Puttaswamy (9J) (supra) and the observations above that the Constitution guarantees the right to informational privacy of political affiliation.
Reference
Association for Democratic Reforms (ADR) & Anr. V. Union of India & Oth. (2024)
[1] (2017) 10 SCC 1