26/08/2017 GS Paper 2 0 comment

Right to Privacy | All you need to know

Introduction –

A nine-judge constitution bench of the Supreme Court on Thursday held that privacy is a fundamental right under the Constitution of India.

Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and will be included under part III of the Constitution.”, said chief justice J.S. Khehar while pronouncing the unanimous verdict.

What is ‘Right to Privacy’?

  • A right to privacy is explicitly stated under Article 12 of the 1948 Universal Declaration of Human Rights.
  • The right to privacy is our right to keep a domain around us, which includes all those things that are part of us, such as our body, home, property, thoughts, feelings, secrets and identity. The right to privacy gives us the ability to choose which parts in this domain can be accessed by others, and to control the extent, manner and timing of the use of those parts we choose to disclose.

Background

  • In 1954, various offices of the Dalmia group were searched and this was claimed to be unconstitutional. While disposing this untenable plea, the Supreme Court made a passing observation that the Indian Constitution did not provide for a fundamental right to privacy.
  • In 1962, a six-judge bench of the Supreme Court had to consider the validity of certain rules of Uttar Pradesh, which permitted the police to undertake picketing, surveillance, maintain records of the movement of history-sheeters and make “domiciliary visits at night”. The Supreme Court upheld these powers except the last one: Such nightly visits were held to be constitutionally impermissible. This judgment also contained an observation that there was no fundamental right to privacy.

But both of these judgements have been overruled by the nine-judges bench of the Supreme Court yesterday.

Right to privacy in United States –

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment.

What happens after the judgement?

“Right to Privacy” will now find place under Part III of the Constitution of India along with other fundamental rights: right to equality before law, right to various freedoms such as speech and expression/to move freely, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.

Observation of the judges on ‘privacy’-

  • Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
  • Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
  • Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
  • Informational privacy is a facet of the right to privacy.
  • The submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. It betrays a misunderstanding of the constitutional position.

Analysis of the judgement –

The judgement represents a quantum leap in the evolution of legal jurisprudence pertaining to privacy in India. There will be far reaching implications of the judgement, even though the right existed for more than 40 years in India.

  • In the case of loan defaulters, the Government was using the shield of right to privacy to safeguard the identities of defaulters from disclosure to the public. The Government has not contested that there is a right to privacy in all these 40 years. It was only in the case of Aadhar that the Government chose to contest it for some specific reasons.
  • The judgement has demolished the conception that privacy can be protected through a codified mechanism through a statute, so why do we need something as sacrosanct as a constitutional right? The judgement confirmed that elevation of right to privacy to the status of a fundamental right is to take it outside the pale of legislative majority, so that no brutal majority is in a position to overturn the particular right. The statutory rights are the creations of a particular statute which can be curtailed by another statute or an amendment to the same statute. Whereas, a fundamental right forms part of the basic structure, hence it is elevated to a different status altogether.
  • In the age where we are moving and pushing for ‘Digital India’, the right to privacy becomes a common man’s concern, and not just the concern of an elitist mindset, especially in context of data convergence and storage of authenticated records of individual data. To sum it up, the penetration of technology has made privacy a common man’s concern and it is not limited to the coffee table talks of the elitist figures.
  • The judgement also says that the rights under Article 21 are not to be judged only under the anvils of State actions, but also on the actions of the State on individual freedom. Therefore, the implications of the judgement range from not just what effect it would have on an individual, but also on the intent of the State to affect individual freedom.
  • The existing laws would need to be redrafted to bring them into consonance with today’s landmark judgement.
  • India does not have a strong privacy law yet, but this judgement sets the precedent for the same.

Government’s response to the judgement –

Government has welcomed the move and reaffirmed that it is consistent with all the necessary safeguards that it has been taking and ensuring in its legislative proposals which had been approved by Parliament. If ‘Right to Privacy’ is a Fundamental Right under Article 21, which is subject to restriction that it can be restricted by a procedure established by law, that procedure established by law obviously has to be fair, just and reasonable procedure.

Impact on Aadhar Scheme –

In 2015, during the hearing of Aadhar litigation, the Former Attorney General Mukul Rohatgi brought forward the right to privacy debate into limelight which was successively materialised into today’s judgement on the fundamental rights issue. So, in a way, the Aadhar issue is to be thanked for bringing the notion of privacy as a fundamental right today.

It is not yet clear if the judgement would directly impact the Aadhar related welfare schemes. It would depend upon the future legislations and the amendments that the Government would pour into the existing legislations. In consonance with the statements issued by the Government, the judgement is merely an extension of the right into the Part 3 domain of the Constitution which can also have reasonable restrictions like other Fundamental Rights.

It is argued by the experts that Aadhar is non-violative of right to privacy in the context that it is merely a Yes/No machine which responds negatively or positively to confirm the identity of the beneficiary. It cannot disclose the biometric identity to the users. But the sceptics have argued that the moment Aadhar usage is extended to commercial use (non-government use) such as rail bookings, flight bookings, mobile connection booking etc, the concerns of privacy arise. The threat of hacking/theft of Aadhar base is a technological issue and not directly concerned with the privacy rights of an individual. In a nutshell, the positives outweigh the negatives, so the Government is arguing for retaining the Aadhar scheme of biometric identification. Hence, any exaggerated analytical response to the judgement is premature with respect to its effect on the Aadhar related welfare and security schemes.

Information Technology Act, 2002 (Privacy concerns) –

the Information Technology (Amendment) Act, 2008 made changes to the Information Technology Act, 2000 and added the following two sections relating to Privacy –

  • Section 43A, which deals with implementation of reasonable security practices for sensitive personal data or information and provides for the compensation of the person affected by wrongful loss or wrongful gain.
  • Section 72A, which provides for imprisonment for a period up to 3 years and/or a fine up to Rs. 500,000 for a person who causes wrongful loss or wrongful gain by disclosing personal information of another person while providing services under the terms of lawful contract.

Privacy v/s National Security –

It is often portrayed that privacy and security are always at a loggerhead. It has been seen that every fundamental right can potentially be at loggerheads with national security, if it is stretched beyond a point. Hence, lines must be drawn in context of individual cases where a required balance between the fundamental right and national security can be maintained and sustained for the betterment of society which includes a secure society too

Conclusion –

According to the Supreme Court, maintenance of privacy of an individual requires a careful and sensitive balance between individual interests and legitimate concerns of the State. The legitimate aims of the State would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. Government should also pursue larger consultations with all the stakeholders to formulate a strong privacy law for the country.