ven after working on issues of privacy and data rights for seven years, people from all walks of life still tell me that privacy has no place in Pakistani culture. Some joke that desi families give each other no space or privacy and cite anecdotes where strangers will ask intrusive questions. More seriously, survivors of gender-based violence will tell you about the many ways in which their privacy is violated as part of the violence they experience and through the justice system, often subjecting them to unnecessary questions about their sexual history. There are little to no safeguards to protect one’s identity.

In this context, the Lahore High Court’s judgment in the case of Muhammad Rehmat Ullah vs The State, 2023 sheds light on not only the privacy rights available to citizens but also the importance of these rights in preserving our dignity and fundamental rights. The court held that the retrieval of evidence from mobile devices of the accused without due process, i.e. consent of the accused or proper approval from a court or magistrate, amounted to a violation of the right to privacy under Article 14 and protection against self-incrimination under Article 13 of the constitution.

Article 14 of the constitution states that “the dignity of man and, subject to law, the privacy of home, shall be inviolable.” In Pakistani jurisprudence, the right to privacy has been interpreted to extend to electronic communications and not just physical spaces such as the home (in the landmark Supreme Court case of Benazir Bhutto vs President of Pakistan, 1997, where it was held that wiretapping at the behest of the prime minister was illegal). The Lahore High Court judgment in 2023 takes a similar conception of space when it declares our digital devices akin to our “homes.” The characterisation of digital and physical spaces collapsing into one another is important from a privacy point of view as it underscores the extent of our private data and private selves captured in these digital spaces. In fact, in the digital age, accessing someone’s private device can often offer more information than a trespass on their homes as they tend to contain more of one’s financial, social and political lives.

While laws such as the Investigation for Fair Trial Act, 2013, Pakistan Telecommunication (Re-organisation) Act, 1996, and Prevention of Electronic Crimes Act, 2016 have been criticised for providing wide powers of surveillance, the judgment states that they still contain safeguards regarding judicial oversight and reasonability criteria for law enforcement before they can obtain a person’s data. The court thus ruled that the evidence collected from the mobile phone of the accused could not be relied on in the absence of a warrant as it was obtained illegally.

The judgment comes at a crucial time as Pakistan is at the precipice of passing its Personal Data Protection Act. However, as the bill awaits its day in the parliament, it is important to recognise that privacy rights are a complicated subject in the digital age.

In addition to privacy, the judgment refers to the right against self-incrimination, guaranteed under Article 13 of the constitution, which states that “accused of an offence, [cannot] be compelled to be a witness against himself.” The judgment states that surrendering one’s mobile phone to law enforcement can result in self-incrimination as “it is not expected that everything you have stored in your phone by consent or was it downloaded systemically without the consent must be fresh in your memory.”

This judgement is a step in the right direction for jurisprudence on the right to privacy, forming part of recent judgments by the higher judiciary upholding privacy rights. Privacy rights were a centre point of the powerful dissent written by Justice Mansoor Ali Shah in the Justice Qazi Faez Isa and others vs The President of Pakistan, 2021, case where he raised objections over the use of illegal surveillance practices to obtain documents cited in the presential reference against Justice Qazi Faez Isa.

Further, in 2020, privacy rights were part of the constitutional challenge to the infamous two-finger virginity test deemed illegal by the Lahore High Court in the Safaf Aziz vs Federation of Pakistan, 2020, case where it was held that the test was invasive and subjected rape victims to re-traumatisation. Justice Ayesha Malik held that the test “violates the right of privacy with respect to a woman and her right over her own body.” This reasoning was reinforced in the Supreme Court case Atif Zareef vs The State, 2021, dealing with a rape case where the court held that a survivor of gender-based violence cannot be questioned on their alleged “general immoral character” or their sexual history as it is immaterial to such cases and violates their privacy. As privacy jurisprudence develops in the realm of gender it is anticipated to be instrumental in the protection of transgender gender self-identification and autonomy.

Lastly, this judgment comes at a crucial time as Pakistan is at the precipice of passing its Personal Data Protection Act. However, as the bill awaits its day in the parliament, it is important to recognise that privacy rights are a complicated subject in the digital age. Approaches such as data sovereignty (also known as data localisation) as proposed in the bill prepared by the Ministry of Information Technology and Telecommunications (MOITT) are tempting, but might ultimately end up being a misguided attempt to restrict the flow of data in an increasingly interconnected world. It is hoped that as our judiciary and general population become more aware of privacy imperatives, we can start developing forward-looking and human rights-centric approaches to privacy.

The writer is the director of policy and research at Digital Rights Foundation