Mr Subramanium expressed concern over the tendency to repose undue faith in institutional mechanisms like the Data Controller regime. According to him, this could amount to subordinating fundamental values such as liberty and autonomy to regulatory measures. In his opinion, it was important to bear in mind that data collection, aggregation and profiling could have potentially devastating impacts on political equality.
Commenting on the UK regime, he lauded the development of the right to privacy under the influence of the Human Rights Act. He sought to illustrate this by juxtaposing Lord Hoffman’s views on the subject in the Wainwright and Naomi Campbell cases. Privacy had emerged from merely being an underlying value in the Wainwright case to a serious human rights question in the Naomi Campbell issue. Subramanium also touched upon how the latter case had provided impetus for the horizontal application of the right.
He then proceeded to analyse the Puttaswamy judgement in India. He welcomed Justice Kaul’s reference to the horizontal application of the right. As far as Justice Chandrachud’s judgement was concerned, the key takeaway for Mr Subramanium was the expansion of the concept of privacy. The transition from merely the right to be let alone to the ability of an individual to self-actualise was a significant development, in his opinion.
Mr Subramanium also commended the philosophical approach adopted by the court in conceptualising privacy as a natural and inalienable right. To him, this amplified the point that values like liberty, autonomy, equality etc would be meaningless without privacy. It is this conception of privacy as a natural, inalienable and fundamental right that drove Mr Subramanium’s concerns about wholly submitting to a data control regime.
Mention was also made about how Justice Chelameshwar had viewed privacy as a ‘firewall’ to prevent interference with liberty by the state.
Having discussed both the UK and the Indian jurisprudence, Mr Subramanium sought to contrast Lord Hoffman’s views with that of the Indian approach. While Lord Hoffman viewed privacy as competing with other rights, the Indian Court had envisioned it as a substantive, primordial right that was subject to very narrow exceptions. In fact, Mr Subramanium opined that the usually pleaded exceptions like national security would now have to be very strictly interpreted. The proportionality and arbitrariness standards would be instrumental in this regard.
Insofar as the discussion on ‘ordered liberty’ was concerned, Mr Subramanium preferred to view liberty as an idea that should be given its full play. He remarked that this did not necessarily amount to adopting an absolutionist position. He acknowledged that platitudinal caveats could continue to exist.
The primary discussant, Mariyam Kamil opened the discussion by asking Mr Subramanium what he made of the Supreme Court’s divergent opinions on horizontal application of the fundamental right to privacy. She mentioned, in particular, Justice Chandrachud who had not addressed the issue and Justice Bobde who had categorically rejected the same.
Mr Subramanium responded by noting that Justice Chandrachud had left the matter to legislative discretion. But in his opinion, the interpretation of privacy as incorporating positive duties provided sufficient leeway to hold the state accountable, not only for actions that could be directly imputed to it, but also for its inability to control non-state actors that infringed privacy rights.
Ms Kamil then raised the point that the Court in Puttaswamy seemed to be leaning towards proportionality as a standard of judicial review. She then enquired whether this concerned Mr Subramanium as he had advocated for a stricter standard in assessing exceptions to privacy rights.
In response, Mr Subramanium remarked that a proportionality standard had to incorporate an understanding of the nature of the right. Since privacy had been envisioned as a natural, inalienable and fundamental right, it would imply that a strict proportionality standard be adopted while assessing deviations from it. In his words, “the justifiable bandwidth depended on the nature of the right.”
Subsequently, Ms Kamil cited the Data Protection regime in the UK, where regulators were held to standards like fines, right to erasure and the like. She asked Mr Subramanium whether he believed that these were some measures that could be mapped onto the Indian legal system.
Mr Subramanium expressed his wariness about relegating the matter to civil servants in such cases. For him, privacy was an intrinsically jurisprudential question that had to be handled by the judiciary. In sensitive cases which pitted vulnerable persons against international giants, he believed that fines could not be the sole remedy. Punishments like incarceration were intrinsic to protecting fundamental rights like privacy.