Right to Privacy

The Supreme Court’s verdict protecting the right to privacy as a fundamental right is a momentous development, for it promises much-needed course correction on governce overreach. It sets to rest serious concerns about the path State power in India has been taking vis-a-vis informatiol privacy of citizens. First things first, the 9-member SC constitutiol bench is unimous that privacy is a fundamental right — ‘protected as an intrinsic part of the right to life and persol liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution’. However, four judges including Chief Justice JS Khehar also made it clear that like the other fundamental rights, the right to privacy ‘is not an absolute right’. Speaking for the NDA government, Union Law Minister Ravi Shankar Prasad has seized on this point, reiterating that the right to privacy is not absolute, that it is subject to ‘reasoble restrictions as applicable’ to the right to liberty, freedom and free speech. This sounds very well, but what position did the government actually take before the apex court? It comes out clearly from the judgment written by Justice DY Chandrachud on behalf of 4 judges including the CJI, where he has observed that the government’s position that there is no fundamental right to privacy, that it is a mere common law right — ‘betrays lack of understanding of the constitutiol position’ as to why some rights were protected in the first place as fundamental rights. “The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, 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 unsustaible,” it was observed.

After this strong takedown of the government’s position, the SC judges made two points absolutely clear. Firstly, that the Indian Constitution places the individual ‘at the forefront of its focus’, guaranteeing civil and political rights in Part III (under Fundamental Rights) and embodying their aspiration to achieve socio-economic rights in Part IV (under Directive Principles). Secondly, the judges said civil and political rights ‘are not antagonistic’ to socio-economic rights, that in fact they ‘are complementary and not mutually exclusive’. “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights,” the judges added for good measure. In this context, it has to be remembered that this landmark case arose over the challenge to the validity of Aadhaar scheme on the ground that it violates the right to privacy. Misgivings have been expressed that the 12-digit Aadhaar card containing biometric details of ‘residents of India’ was being made de facto compulsory for an ever-growing number of uses. What was origilly envisaged as a means to identify beneficiaries of government welfare schemes, was being continually extended to all sorts of services like buying air or rail tickets and taking admission in educatiol institutions. Concerns have been aired that the government was actually putting in place a ‘surveillance State’ by collecting data of citizens and controlling that huge database for murky ends. And even the security of this database is not guaranteed either, with fears that it could be misused for commercial or offensive purpose as the huge servers storing this database are mostly located offshore.  

Dealing with the question of informatiol privacy, the SC judges observed that while the State may have justifiable reasons for collection and storage of data, it has to be used for ‘legitimate purposes’ like prevention and investigation of crime and protection of revenue. But this must not be done in uuthorised manner with ‘extraneous purpose’, and that privacy concerns must be protected in an information age posing dangers “not only from the State but from non-State actors as well”. Reacting to the SC judges’ suggestion that the Union government put in place a robust regime for data protection, the Law Minister has said that a committee for data protection has already been constituted and a data protection bill is in the offing. While batting for the Aadhaar scheme which has been linked to mobile phone numbers, bank accounts and PAN cards, the Law Minister has pointed out that with poor beneficiaries getting subsidies directly in their accounts, the government has saved about Rs 57,000 crore over the last 3 years — which would otherwise have been pocketed by middle-men. He has also countered Congress allegations of ‘fascist forces’ encroaching into privacy of citizens through digital surveillance, by pointing out that while it was the UPA regime that had sought data under Aadhaar, it was the NDA that had ected the law after coming to power. In the coming days, there will be more political war of words over the SC verdict on privacy. But common citizens will draw comfort from its definition of privacy as a freedom that represents the ‘core of human persolity’, that it gives each individual the right to make choices and take decisions on matters ‘intimate and persol’.