Right to privacy is a fundamental right now

Context:

The nine –judge Constitutional Bench of the Supreme Court on Thursday ruled that individual privacy is intrinsic to life and liberty and an inherent part of the fundamental rights enshrined in the Article 21 of the Constitution.

What are the various features of Right to Privacy?

• Privacy is a constitutionally protected right emerging primarily from the guarantee of life and liberty in Article 21 of the Constitution.
• It includes the preservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation.
• Privacy connotes a right to be left alone. It safeguards individual autonomy and recognizes one’s ability to control vital aspects of his/her life.
• Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.
• Informational privacy is a facet of this right. Dangers to this can originate from both state and non-state actors.

What implications the ruling would have on different sections?

The Supreme Court ruling will impact the different sections of society:

• Implications on Aadhaar :
• Aadhar initiative requires collection of personal data from residents of India, and this has resulted in controversy regarding its potential to be missed. This is so because:

1. It requires collection of biometric details like scanning and finger prints which are essentially crucial details and could be misused
2. Cyber space is a vulnerable space and is prone to threat
3. Cyber security architecture is not very strong in India
4. Aadhaar lacks statutory back up and is also running on an executive order, which has also raised questions.

• The SC ruling will impact daily lives of the people since it has implications for matters ranging from collection and sharing of personal data to the government’s move to make Aadhaar mandatory for benefits of social welfare scheme.
• Petitioners have challenged the Aadhaar scheme on the following grounds:

1. Expressing fear that the data being collected by private agencies may be misused
2. Questioning the proposal to link Aadhaar with PAN cards and phone number
3. Making the unique ID number mandatory for availing government benefit
4. The petitioners are challenging the nature of information collected, which includes biometrics and its alleged unlimited use by government agencies.

• A five-judge bench, which referred the matter to the nine-judge bench, would decide whether the scheme is a reasonable restriction on the fundamental right to privacy.
• The apex court would test whether the purpose of collecting the personal data is a “legitimate state interest” beneficial for the public.
• The Judgment also may open the Aadhaar-programme account number linkage issue.
• The apex court’s judgement would also have an effect on a pending petition filed by parliamentarian Jairam Ramesh, challenging the passage of the Aadhaar(Targeted Delivery of Financial and other Subsidies, Benefits, and Services) Act 2016 on March 2016 as a Money bill.

2-  Implications on rights of gay community(Section 377):

• The judgment makes it clear that sexual orientation is part of privacy and constitutionally protected and that the 2014 verdict upholding Section 377 of the Indian Penal Code is flawed.
• Five judges including Chief Justice Khehar, held that sexual orientation is part of a person’s fundamental right to privacy.
• Four justices, J Chelameswar, SS Bobde, Abhay Manohar Sapre, RF Nariman and Sanjay Kishan Kaul, didn’t dissent from the five judges who spoke on sexual orientation as a facet of privacy.
• This clears the way for decriminalising homosexuality.
• The judgment gives a new lease of life to the prolonged fight to decriminalise Section 377 of the IPC, a colonial-era provision criminalising consensual sexual acts of LGBT adults in private.
• In 2016, the court had agreed to set up a five –judge Bench to hear a batch of curative petitions challenging section 377 as a threat to the right to privacy and dignity, resulting in gross miscarriage of justice.

3- Implications on Internet and financial firms using personal data:

• The apex Court also touched upon several key facets of privacy such as informational privacy in the digital age and urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments.
• The judgment may have a bearing on the pending challenge to a 2016 contract entered into between Whatsapp and Facebook in 2016 to share user information including messages, pictures, and videos, etc.
• There are potential implications here for data collected by firms in finance and ecommerce, and by app developers.
• Government must put in place a robust regime for a data protection. It must bring a balance between individual interest’s legitimate state concerns.

4- On Society:

• The verdict can also impact restrictions on right to convert and choice of food.
• Such laws and rules will be more vulnerable to legal challenge.
• India has a number of state-level laws against conversion and several states have restricted on animal slaughter.

5- On Government:

• The broad implication is that the government cannot frame any policy or law that completely takes away the citizen’s right to privacy.
• It can only place reasonable restrictions on limited grounds such as national sovereignty and security, public order, decency, etc as mentioned in Article 19(2) of the Constitution.

6-  Civil liberties:

• The verdict strikes down the states power to suspend civil liberties during emergencies.
• By doing so, it overruled the Emergency era ruling made in the ADM Jabalpur case that had said that State suspend and take away the liberty of citizens during a proclamation of Emergency.

Why the judgment was important?

• The decision is historic because it has ruled that privacy is a fundamental right now.
• It has also deepened our understanding of fundamental rights as inalienable inherent rights in every human being.

What was the Supreme Court’s verdict?

• The Right to Privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of Part III of the Constitution.
• The apex court held that privacy is a natural right that inheres in human beings because they are human beings.
• The state does not bestow natural rights on citizens.
• The SC ruled that Natural rights like privacy exist equally in all individuals without any discrimination on the basis of class, strata, gender or orientation.
• It also spoke of the right to marriage, procreation, privacy of home and the right to be left alone as other facet of privacy.
• The apex court also ruled that dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognized.
• The court also ruled that privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.

What were the various arguments involved?

1- Arguments by government:

• The centre had argued against the recognition of privacy as a fundamental right.
• The centre had assured the court that privacy would be protected through parliamentary statutes.

2-  Arguments by Court:

• The court chided the Centre for describing right to privacy as an “elitist construct.”
• Attorney-General K.K. Venugopal had argued that privacy was the concern of a few, while schemes like Aadhaar, which require citizens to part with their biometric details to the state, reduce corruption and benefit millions of poor.

Right to privacy is an absolute right or not?

• The court ruled that Privacy is not an absolute right.
• The government can introduced a law which “intrudes” into privacy for public and legitimate state reasons.
• But an individual can challenge this law in any of the constitutional courts of the land for violation of his/her fundamental right to privacy.
• There are many grounds on which government can impose restrictions.

What are the various grounds on which restrictions can be imposed?

• The right to privacy can be restricted by procedure established by law and this procedure would have to be just, fair and reasonable.
• Reasonable restrictions can be imposed on the right to privacy on the following grounds:
• Interest of the sovereignty and integrity of India.
• The security of the State.
• Friendly relations with foreign State.
• Public order, decency or morality.
• In relation to contempt of court, defamation or incitement to an offence; (Article 19(2) of the Constitution of India, 1950).
• The right to privacy can be restricted if there is an important countervailing interest which is superior to it.
• The right to privacy can be restricted if there is a compelling state interest to be served.
• The protection available under the right to privacy may not be available to a person who voluntarily introduces him- or herself into controversy.

What are the constitutional provisions dealing with privacy?

Article 21

• The Constitution of India does not specifically guarantee a “right to privacy”
• However, Article 21 of the Constitution of India states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”.
• Article 21 interprets that the term ‘life’ includes all those aspects of life which go to make a man’s life meaningful, complete and worth living.

What are the various committees and cases dealing with right to privacy in India?

Cases:

• P. Sharma vs Satish Chandra case (1954), which involved a challenge to the constitutionality of search and seizure of documents from a person against whom a FIR was lodged.
• The Kharak Singh vs State of Uttar Pradesh case (1963),in which the petitioner Kharak singh challenged the constant surveillance on him by U.P police on grounds of violation of article 19 and 21.
• Gobind vs State of Madhya Pradesh case (1975),where Supreme Court recognized Right to Privacy as implicit in the Right to Life and Personal Liberty guaranteed by Article 21 of the Constitution. However, court made it clear that this was not an absolute right and reasonable restrictions can be imposed on basis of public interest.
• ADM Jabalpur vs Shukla case(1976),where a constitutional bench shamelessly declared that under emergency provisions no one could seek the assistance of court in India to try and save his liberty,life or limb threatened to be taken by the state.
• Maneka Gandhi vs Union of India case (1978)

Committees:

• Shah committeeunder former SC chief justice A.P. Shah was setup by planning commission in 2011 to identify privacy issue n give suggestion to privacy bill.