RIGHT TO PRIVACY IN INDIA

Thursday, August 24, 2017

 

 

In constitutional law, the right of people to make personal decisions regarding intimate matters; under the common law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbor’s prying eyes, an investigator’s eavesdropping ears, or a news photographer’s intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and electronic surveillance.

 

The origins of the right to privacy can be traced to the nineteenth century. In 1890, Samuel D. Warren and louis d. brande is published “The Right to Privacy,” an influential article that postulated a general common-law right of privacy. Before the publication of this article, no U.S. court had expressly recognized such a legal right. Since the publication of the article, courts have relied on it in hundreds of cases presenting a range of privacy issues.

 

In India, “Right to privacy is not a fundamental right under our Constitution. It flows from one right to another right. Constitution makers did not intend to make Right to Privacy a fundamental right. There is no fundamental right to privacy so these petitions under Article 32 should be dismissed,”

 

He submitted before the bench, also comprising Justice S A Bobde and C Nagappan, which asked “would a person bargain his fundamental right to privacy to get a fundamental right of food”.

 

“If a court comes to the conclusion that the right to privacy is a fundamental right then you cannot waive it,” the bench observed while the Attorney General said if such issues are arising in the matter then “why can”t it be referred to a larger bench”. Rohatgi said there is a “clear divergence of opinion” on the right to privacy and “a classic case of unclear position of law”.

 

Further, he said the makers of Constitution also did not intend to make it a right and referred to apex court”s judgments in this regard. The court was hearing a batch of pleas against decisions of some states to make Aadhaar cards compulsory for a range of activities including salary, PF disbursements and marriage and property registration.

 

The AG said question does not arise of any violation of the right when it is not there and asked the Supreme Court to refer the case to a five-judge Constitution bench to decide whether Right to Privacy can be declared a fundamental right. Senior advocate Shyam Divan opposed AG”s submission and said those verdicts do not hold ground currently as jurisprudence has evolved through judgments of Supreme Court over the years. “I think it is a very disappointing proposition that Indians don”t have right to privacy”, he said.

 

However, the bench said, “Don”t you think that if you have a divergence of views on right to privacy, then should it not be referred to a five-judge bench.” Divan will continue his arguments tomorrow.

 

Earlier, the court had  said Aadhaar will not be mandatory and a person, who does not have it, should not suffer in availing government benefits and services like gas connections, vehicle and marriage registration, scholarships, and provident fund. It had asked the Centre not to issue Aadhaar cards to illegal immigrants as it would legitimize their stay.

 

Given the government's aggressive defense of Aadhaar, many human rights defenders feared the worst. The steady expansion of the scheme and the delay over the nine-judge bench being formed allowed Aadhaar to become an insidious part of Indian citizens' life. Indeed, in many ways the delay has led to Aadhaar being linked to all manner of essential and nonessential services. In last week's 547-page judgment, the Court is clear about the fundamental right to privacy and has overruled these two past judgments insofar as their observations on privacy were concerned. The constitutional framework for privacy clarified last week by the Court will breathe life into the Aadhaar hearings.

 

While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery. The order ends the legal gridlock in the hearings on the validity of the scheme. The identification database that Aadhaar builds will not be easy to reconcile in the framework for privacy drawn up in the judgments. Legal experts are of the opinion that, following the judgment, "it is amply clear that Aadhaar shall have to meet the challenge of privacy as a fundamental right."

 

The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar.

 

The lead judgment calls for the government to create a data protection regime to protect the privacy of the individual. It recommends a robust regime which balances individual interests and legitimate concerns of the state. Justice Chandrachud notes, "Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data sub-serves together with the legitimate concerns of the state." For example, the court observes, "government could mine data to ensure resources reached intended beneficiaries." However, the bench restrains itself from providing guidance on the issues, confining its opinion to the clarification of the constitutionality of the right to privacy.

 

The judgment will also have ramifications for a number of contemporary issues pending before the supreme court. In particular, two proceedings—on Aadhaar and on WhatsApp-Facebook data sharing—will be test grounds for the application and contours of the right to privacy in India. For now, what is certain is that the right to privacy has been unequivocally articulated by the highest Court. There is much reason to celebrate this long-due victory for privacy rights in India. But it is only the first step, as the real test of the strength of the right will in how it is understood and applied in subsequent challenges.

 

 

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