Note4Students/Syllabus Mapping: GS2

The recent nine-judge Constitution bench of Supreme Court headed by Chief Justice J. S. Khehar ruled ‘Right to Privacy’ as a Fundamental right protected intrinsically as part of rights guaranteed under Article 21 of the Constitution. As any constitutional interpretation this one is historic and a watershed judgment which has multiplier ramifications over social, political, cultural and economic spheres of citizen-state machinery. UPSC is usually interested in Supreme Court interpretations and this topic forms potential bedrock for analysis. A question on analysis of this topic is expected this year CSE Mains 2017.

Context:

Under the three key Issues involved:

1. Whether Right to Privacy is a fundamental right or not?
2. Need for a stringent data protection act in lieu of fundamental right to privacy.
3. Is sharing personal data to government same as sharing our data with foreign private players?

The recent Supreme Court ruling that Right to Privacy is a Fundamental Right has put to rest the questions rose about definition of privacy and clarified the ambiguities around this matter.

Significance of the Judgment- Multiplier implications!

• • The final verdict says “Privacy is intrinsic to the right to life and personal liberty under Article 21 of the Constitution and an inherent part of fundamental freedom under part III of the Constitution.”
  • The Supreme Court has reaffirmed the primacy of the individual and served as a check on legislative and executive power.
  • The amorphous definition of Privacy has been done away with by overruling earlier judgments of M.P Sharma vs Satish Chandra (1954) and Kharak Singh vs State of Uttar Pradesh (1962) that had held privacy to not be a fundamental right.
  • An ordinary man not just a citizen, but anyone, whether an Indian national or not, can move the constitutional courts of the land under Articles 32 and 226, respectively, to get justice in case of violation of fundamental right.
  • The court emphasized upon personal, informational and digital privacy. It cleared the air on the amorphous nature the concept of privacy.
  • The judgment of the SC by overruling it earlier verdict shows evolution of our judiciary with changing time.
  • It will directly impact food choices, beef bans and any such restrictions that is intrinsic to choice and privacy
  • The nine-judge Bench’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect.
  • The apex court has set the stage for the introduction of a new privacy law by the government.
  • The right to privacy is now applicable against the state as well as against the private companies who possess large amounts of user data without consent or nominal consent of users.

 

1. Acknowledging the pervasion of technology, the apex court identified privacy of information as a subset of the right to privacy. 
2. The judgment cites women’s abortion rights and the execrable Section 377 to note that sexual orientation, gender identity and women’s bodily autonomy are bound with human dignity and the right to privacy. This has profound implications for women and the LGBT (lesbian, gay, bisexual and transgender) community.

The Contours of Privacy:

 

1. It would include bodily integrity, personal autonomy, protection from state surveillance and freedom of dissent, movement, and thought.
2. Privacy in its core includes the “preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”.
3. A woman’s freedom of choice to bear a child or abort the pregnancy, freedom to choose to work or not and the right to travel freely fall within this right.
4. It encompasses concepts of personal, informational and digital privacy.
5. Considering the secret ballot an extension of privacy principles into the public space and political system, without which elections would be a farce in a democracy like India.

Right to privacy – why do we need it?

1. The right to privacy has become fundamental in today’s age of technological advancements. For instance through Global Positioning System (GPS), the movement of person could be tracked and misused by the State as well as by non-State actors.
2. Privacy enjoys robust legal framework recognition internationally under Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR). India has signed and ratified the ICCPR without reservation.
3. It is essential to preserve the balance of power between governments and citizens, especially for a large democracy like India.

Caveats to the judgment:

• • Privacy is at best a “sub-species of liberty and every aspect could not qualify as being fundamental in nature” and that the right could not be extended to “every aspect” of privacy.
  • The litigation against the Aadhaar programme is still pending in a separate case, the striking down of Aadhaar Act (which has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions) on grounds of privacy violations could curtail DBT and welfare scheme benefits.
  • The idea of the “right to be left alone” against the long-standing demand of India’s poor for the “right to be acknowledged” by the state—which was the genesis of Aadhaar in the first place.
  • It will most likely roll back many of the gains made under the ambit of the right to information, which is not a fundamental right, but a statutory right under the Right to Information Act, 2005. Such a ruling could also run afoul of access to information such as voters’ lists, National Rural Employment Guarantee Act muster rolls, etc., which we now take for granted in the name of transparency.
  • Likewise, the state’s actions and processes when it comes to law and order and national security will come under increased scrutiny.
  • Right to life implicitly contains the right to privacy as well. Those protections and rights can be constrained by “procedure established by law”. Without the reasonableness guaranteed by Article 14 to test that procedure, Article 21 is weakened.
  • Right to terminate life under euthanasia as a choice claimed under privacy can have negative fallout along with rise of suicides and abortion if recognized as arbitrary private decisions.
  • Now that Aadhaar has covered 99% of the population, if struck down, could cost exchequer heavily.
  • Right to privacy is not expressly included in the Constitution as the founding fathers rejected or jettisoned the idea of inclusion of privacy as a fundamental right. 

 

1. Some experts raised an argument that there is difference between the right to privacy being considered a common law right and a fundamental right.
2. ‘Informational privacy’ could not be a right to privacy and it could not ever be a fundamental right as Most of our data is anyway outside, and we have no control over its usage. 

Way forward:

1. A data protection regime should carefully balance the trade-off between individual interests and legitimate concerns of the state.
2. The State is obliged to put a robust personal data protection mechanism in place in this digital age. A data protection law as soon as possible is the way to go as highlighted by Nandan Nilekani.
3. Neither private entity nor government should have unrestricted access to information. Both need to come under accountability mechanisms.

Conclusion:

A judgment this comprehensive and far-reaching is bound to raise questions as well. By declaring right to privacy as a new freedom and clear fundamental right it has opened up plethora of hopes and aspirations of Indian citizens as a whole and protects them from arbitrary intrusions of their personal space. While it has negative fallouts, rationally demarcated restrictions on this freedom and a properly regulated robust data protection law to support the judgment is the need of the hour.