Right to privacy is a Fundamental Right: SC

The Supreme Court has ruled right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.

• The court has held that “the right to privacy is protected as intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
• The court has, with broad brushstrokes, enhanced and highlighted the right. Crucially, it has indicated that the contours of privacy mentioned in the judgment are not limitations to the right but foundations, over which it will develop over time.

Background:

The Supreme Court was hearing a challenge to the Delhi high court’s September 23, 2016 order by which it allowed WhatsApp to roll out its new privacy policy but stopped it from sharing the data of its users collected up to September 25, 2016, with Facebook or any other related company.

• The issue was rooted in a reference by a three-judge bench that was hearing a challenge to the constitutional validity of the Aadhaar scheme on the grounds of its being violative of the fundamental right to privacy.
• Initially, on July 7, a three-judge bench said all issues arising out of Aadhaar should finally be decided by a larger bench and the Chief Justice of India would take a call on the need for setting up a constitution bench.
• The matter was then mentioned before CJI Khehar who set up a five-judge constitution bench to hear the matter.
• However, the five-judge constitution bench on July 18 decided to set up a nine-judge bench to decide whether the right to privacy can be declared a fundamental right under the Constitution.
• The decision to set up the nine-judge bench was taken to examine the correctness of two apex court judgements delivered in the cases of Kharak Singh and MP Sharma, decided by six and eight judge benches respectively, in which it was held that this right was not a fundamental right.

Arguments against right to privacy as a fundamental right:

Though after the mid-seventies, several judgments by the benches of strength of two or three judges had held that right to privacy was fundamental but it was the judgment of 1954 and 1962 by the larger benches that holds the ground. The judgments of 1954 and 1962 had held that the right to privacy was not a fundamental right.

• The Centre had also termed privacy as a “vague and amorphous” right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
• The Unique Identification Authority of India, too, said privacy was not a fundamental right and there were sufficient safeguards to protect data collected from the people — their iris scan and finger prints.
• The attorney general had contended that right to privacy cannot fall in the bracket of fundamental rights as there were binding decisions of larger benches that it was only a common law right evolved through judicial decisions.

Petitioners’ arguments:

The petitioners had contended that the right to privacy was “inalienable” and “inherent” to the most important fundamental right which is the right to liberty.

• They had said that right to liberty, which also included right to privacy, was a pre-existing “natural right” which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.
• The petitioners also say, “Privacy is associated with and is the bulwark of other rights. It is located in the golden trinity of Articles 14,19, and 21 (right to liberty and equality). There can be no dignity without privacy, and dignity is part of the Preamble, part of the basic structure of the Constitution.”

Importance of privacy:

While the notion of privacy now extends to the digital space, in the wake of increased internet penetration and smartphones, there is an increase of hacking and misuse of digital credentials as well. It is a well-established fact that privacy helps individuals maintain autonomy, and exercise power over information.

However, there are several bottlenecks etched to the concept of total privacy. For instance, in matters of national security and involving high-profile digital crimes needs intervention from the government, however, in matters which are personal to the user such as digital credentials, chat history on instant messaging apps, digital footprint are among facets that cannot be encroached by any other entity, as it would amount to breaching or hacking.

Concerns:

Legacy data is proof that Indian government or private websites do not have the best reputation when it comes to security, which is vindicated by the number of hacks that have ploughed government websites in the past. Besides, there have been several cases where individuals have succeeded in successfully hacked into UIDAI server.

• While the government has been pushing for the use of Aadhaar and promoting digital transactions, it must be noted that there are no laws to safeguard misuse of personal data, which can be easily traced by data mining activities. While mining is solely used for targetted advertisements, some miscreants may use in to harm the interests of a company or individual.
• Over the years, India has witnessed and been worst victims of deadly ransomware attacks, especially in the sectors of banking and health. With Aadhaar, the government wants the citizens to surf on the digital wave, but noted analysts have mentioned the advanced threat the country faces from modern day hackers.

Impact on Aadhar:

This will have a massive impact on Aadhaar-based litigation. A separate Bench of the court will examine the Aadhar issue. This verdict examines the constitutional status of the right to privacy and strengthens the ordinary Indian’s privacy from being invaded. Government cannot be arbitrary and this verdict has paved the way for growth of jurisprudence on privacy rights in India.

The right to privacy, like any other fundamental right, shall be subject to reasonable restrictions. So, what are reasonable restrictions? That shall be a matter of interpretation to be decided on a case to case basis, just as it is done for fundamental rights. The right of privacy is always a legal right. A legal right can always be curtailed or extinguished by the legislature.

In conclusion, what you need to know?

The right to privacy is now a fundamental right which applies to every Indian’s privacy in the actual world and the virtual world. This fundamental right now gives protection to all Indians but it is not an absolute right, as there can be reasonable restrictions for which the government has to establish a procedure. Any state or its instrumentality cannot infringe on the right to privacy. The verdict has ushered in a new era of privacy practice in India. Privacy, as a fundamental right, will get more premium than it did yesterday. This is a giant leap forward – no other Supreme Court judgment has pushed the envelope like this on privacy jurisprudence and no one will ever be able to treat privacy as an inferior right in India.