Blog
Right to Privacy
The recent Supreme Court judgment that recognized the Right to Privacy as safeguarded under Article 21 of the Constitution is momentous in more ways than one. The judgment was pronounced by a nine-judge bench led by the then Chief Justice of India JS Khehar, and comprising Justices DY Chandrachud (who penned the judgment), J. Chelameshwar, SA Bobde, RK Agarwal, Rohinton Nariman, AM Sapre, Sanjay Kishan Kaul, and S. Abdul Nazeer. It was one of those rare occasions when the entire Apex Court bench of nine judges was in complete agreement about the decision.
What is privacy?
As per the Supreme Court: “Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. Yet the autonomy of the individual is conditioned by her relationships with the rest of society. Those relationships may and do often pose questions to autonomy and free choice. The overarching presence of state and non- state entities regulates aspects of social existence which bear upon the freedom of the individual.”
Thus, simply put, privacy encompasses personal autonomy, bodily integrity, informational privacy, and freedom of choice.
This judgment arose out of a reference by a Supreme Court Bench as part of a sub-issue arising out of the larger petition (Justice KS Puttaswamy (retd.) and Anr. v Union of India and Ors. (Writ Petition (Civil) No. 494 of 2012)) filed regarding the collection of biometric data by the Government of India under the Aadhaar scheme resulting in a possible violation of the right of privacy. The enforced rampant or perceived rampant use of Aadhaar has invoked fears of invasion of privacy, threat of breach of confidential data, excessive surveillance etc. among a section of people.
Background
Earlier, there was no consensus on the right to privacy being a fundamental right under the Constitution. In Gobind v State of Madhya Pradesh ((1975) 2 SCC 148), R Rajagopal v State of Tamil Nadu ((1994) 6 SCC 632) and People’s Union for Civil Liberties v Union of India ((1997) 1 SCC 301), the right to privacy was held to be a Constitutionally- protected fundamental right.
The Supreme Court in M.P. Sharma and Ors. v Satish Chandra, District Magistrate, Delhi and Ors. (1950 SCR 1077) by an eight-judge Constitution Bench, and also in Kharak Singh v The State of U.P. and Ors. (1962 (1) SCR 332) by a six-judge Constitution Bench, held that there is no fundamental right as far as the right to privacy is concerned.
In 2015, a Supreme Court bench of three judges observed: “If the observations made in M.P. Sharma (case) and Kharak Singh (case) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.”
Further, with the initiation of national programmes like Aadhaar, DNA profiling, privileged communications and brain mapping, most of which will be implemented through information communication technology (ICT) platforms, concerns about the possible invasion of citizen’s right to privacy were raised by many. In order to understand these concerns and identify interventions for effectively addressing these issues, the Minister of State (Planning) had directed the constitution of a Group of Experts to identify the privacy issues and prepare a report to facilitate the authoring of the privacy bill. Accordingly, a Group of Experts under the chairmanship of Justice A P Shah, former Chief Justice of the Delhi High Court was constituted on September 29, 2011.
The Report recommended a conceptual framework for the proposed privacy legislation for India with the following salient features:
• Technological neutrality and inter-operability with international standards
• Multi-dimensional privacy
• Horizontal applicability
• Conformity with privacy principles
• Co-regulatory enforcement regime
There was a draft bill on privacy introduced in 2011 and a leaked version of a supposed 2014 bill was doing the rounds on the internet, but no concrete law on privacy has been passed as yet. The government’s stance was that as of now, Sections 43, 43A and 72A of the IT Act of 2000 provide the legal framework for digital privacy and security, mandating that agencies collecting personal data must provide a privacy policy, and compensations must be paid to the victim in case of unauthorized access or leakage of information.
What the Court said
The Supreme Court held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.
An important aspect of protecting the right to privacy is data protection. The Court noted that during the proceedings in this case, the Union government placed on the record an Office Memorandum dated July 31, 2017 by which a committee chaired by Justice B N Srikrishna, former Judge of the Supreme Court of India, has been constituted to review data protection norms in the country and to make its recommendations.
Flip side
While the right to privacy is an inalienable right when it comes to guaranteeing a life of dignity to an individual, certain concerns need to be kept in mind while enforcing it, such as the need for storage, analysis and dissemination of information in the interests of national security, its significance in maintaining law and order and preventing crime, encouraging innovation and knowledge-sharing, and the use of schemes like Aadhaar for effective last-mile connectivity with the beneficiaries of social welfare schemes.
Summing up
The right to privacy, some argue, is merely ornamental and almost elitist, in that it is not much of a concern nor should be in a country such as ours where there are ‘greater’ issues like poverty, hunger and inequality to grapple with. However, the Court has also put to rest this argument stating that political and civil rights are not meant to be at loggerheads with socio-economic rights. Privacy and freedom of choice is as significant for a poor man as it is for a rich one.
However, this judgment is only half the battle one. Only time will tell how the bigger issue of Aadhaar and its implications for privacy of citizens will pan out…
