Right to Privacy: Fundamentally Ours

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By Afshan Nazir and Ayush Gupta

“Essence of human life is when I want to choose solitude, I can choose it. And if I want to socially co-habit, I can do it. You are wrong to say that privacy is an elitist construct. Privacy also affects the masses.” These words of Hon’ble Mr. Justice D.Y. Chandrachud sums up the privacy debate impeccably. A Constitutional Bench of the Supreme Court comprising of 9 Judges, headed by Hon’ble Chief Justice of India J.S. Kehar, ruled today that right to privacy is “intrinsic to life and liberty” and is inherently protected under Part III of the Indian Constitution. Supreme Court through this historic decision has asserted the fact that Indian judiciary is the guardian of rights of common people. Here the Supreme Court overruled its own decisions given in M.P. Sharma case & Kharak Singh case in 1954 and 1961 respectively, which ruled that privacy is not protected under the Constitution.

The whole brouhaha about “right to privacy” reminds one of Shakespearean comedy “Much ado about nothing”. One couldn’t but laugh on India’s stance of sticking to earlier judgments as mentioned above. Where were we till 2015 or 2107 till a sudden bolt of Aadhar and WhatsApp intrusion got us out of slumber and blind faith in our master – the State. They say “love is blind” but even real partisanship can’t make up loss of inalienable right like “right to privacy”. We let state into our bedrooms and bathrooms and when it unreasonably touched our vulnerable nerves we got-up screaming for our right to privacy which we suddenly remembered after letting it see all of our vulnerabilities. It seems like we slept in the 1960s by not agitating about earlier stances of the top court of the country and suddenly we got wide awake.

Why it matters to us?

So “right to privacy” is a fundamental right eventually and we can now go running to top court if ever someone peeks nose into our personal matters unnecessarily. Freedom of life and liberty is incomplete without our ability to be who we are away from the glare of those who wish to overpower us. Today’s verdict clearly reflects that there are still some pure souls present in Indian Judiciary, like great saints –Justice Krishna Iyer and Justice Bhagwati, who could, without any fear, delivered just and reasonable decisions. Today’s verdict on ‘Right to Privacy’ has again widened the horizons of Article 21 after Maneka Gandhi & Mohini Jain cases.

It clearly shows how transparent Indian judiciary is and how time and again it has broadened the scope of law for common people with the changing circumstances. Call it a victory of masses, and undoubtedly it is, as expressions like “elitist construct” and all sound only good to ears but are hollow in essence. Why would we not care if our every tad of information comes in public domain? Why would we not care if every detail of our personal lives becomes part of government directory? Now there will be arguments in favour of Aadhar being a beneficiary scheme etc. It sure may be, but not at cost of privacy which is fundamental to ones being and soul.

By declaring that privacy is inherent to each and every fundamental freedom in Part III of the Constitution, the Supreme Court has made privacy an essential component of other important fundamental freedoms, including right to equality, freedom of speech and expression, religion and plethora of other important fundamental rights essential for a dignified existence subject to reasonable restrictions of public health, morality and order. The court, by declaring that privacy is protected under the Constitution has opened new gates for the common man, in a manner armed him against unreasonable State intrusions and protected informational privacy in a digital age.

The existing laws on privacy are not in harmony with the growing developments in technology in India. The Information Technology Act, 2000 (IT Act) and the rules made there under, do entail certain provisions pertaining to data protection, however as privacy was not a right per se under any law in force, these provisions did appear inadequate in addressing issues relating to sharing of, disclosure and retention of data and leave room for potential abuse. The Privacy Bill, 2010 was introduced by the Department of Personnel and Training, however though the objective of the Privacy Bill was to protect individuals’ fundamental right to privacy, the Privacy Bill primarily focused on provisions pertaining protection against the use of electronic/digital recording devices in public spaces without consent and for the purpose of blackmail or commercial use. Incidentally, the National Identification Authority of India Bill, 2010, which aimed at establishing a National Identification Authority for issuance unique identification number (called Aadhaar) to every resident of India, which would be linked to a resident’s demographic and biometric information, was also introduced. Neither the Privacy Bill, 2010 nor the National Identification Authority of India Bill, 2010, were enacted.

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As of now, data protection provisions are scattered across several statutes. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules of 2011 provides for the secure storage of personal data. There is an entire chapter in the Aadhaar Act of 2016 devoted to privacy and security of personal data. An Expert Group on Privacy, chaired by former Delhi High Court Chief Justice A.P. Shah, submitted a report to the Planning Commission in 2012. It had distilled global privacy practices and enumerated them in what the group called the National Privacy Principles. The report had recommended the passing of a law that makes privacy safeguards technology neutral and to apply it to both government and private sectors.

Commoners are at all times concerned about their reputation and privacy like they care about their lives and livelihoods but the point is government by taking them for granted deceives itself in the process and also allows them to share a common disbelief in their messiah called state which they believe is a panacea for all of their ills. Social Contract theory seems past as it is all democracy and republic everywhere now but government by its adamant moves sometimes reminds us of obsolete theories of past where a certain sovereign used to rule the roost. But hope is still there and that hope is reflected in the ruling of Supreme Court’s judgement on “right to privacy”. One can’t deny positives of schemes like Aadhar but then one can’t rule out the possibility of “reasonable restrictions” in law.

Today’s unanimous decision is welcomed by all: be it politicians or legal luminaries or for that matter common people. This judgement gains international significance too as India had always been circumspect regarding this issue even though there is an existing strong international legal framework regarding Right to Privacy. While people in Germany, USA, Canada, Sweden, etc. enjoyed the strong protection of their Right to Privacy, India had been ignorant of the same. This decision has set the tone for a strong legal framework for Indian citizens’ right to privacy.

Overall, this decision will give a new dimension to Indian Legal system. However, it remains to be seen how this decision shall be implemented. Supreme Court cited some concerns regarding the same, the challenge to harmonize with the advent of Information technology & protection of right in the virtual world is a major task. The court said: “In an age where information technology governs virtually every aspect of our lives, the task before the Court is to impart constitutional meaning to individual liberty in an interconnected world”.

Afshan Nazir and Ayush Gupta are pursuing LL.M. in Corporate and Commercial Laws from Maharashtra National Law University Mumbai.

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