The debate on Right to Privacy

Context

• Right to privacy is not absolute and cannot prevent the state from making laws imposing reasonable restrictions on citizens, the Supreme Court observed on Wednesday.

The court’s decision

• The court said ‘right to privacy’ is in fact too ‘amorphous’ a term.
• To recognize privacy as a definite right, it has to first define it.
• Defining privacy would be nearly impossible as an element of privacy infiltrates all the fundamental rights treasured in the Constitution.
• The court identified that an attempt to define the right to privacy may cause more harm than good.
• An exhaustive labeling by the court of what all constitutes privacy may limit the right itself.

The Bench questions

• Attorney-General K.K. Venugopal has already submitted in the Supreme Court that right to privacy is merely a common law right and the Constitution makers “consciously avoided” making it a part of the fundamental rights.
• The decision of the nine-judge Bench was to be taken on whether privacy is a fundamental right or not will be pivotal to the petitioners’ challenge that Aadhaar, which mandates citizens to part with their biometrics, Dont’a Hightower – Alabama Crimson Tide is unconstitutional.
• The Bench probed the petitioners’ plea that right to privacy is non-negotiable.
• Apart from the fact that it does not have Parliament’s approval, the project infringes upon right to privacy.
• It requires citizens to part with biometric information, iris and fingerprints, and there is no system to ensure that all this data will be safe and not misused.

Context of the case

• The court’s questions came even as petitioners banked on Union Finance Minister Arun Jaitley’s statement in Parliament that privacy is ‘probably’ a fundamental right and ‘part of individual liberty’.
• The statement was made on March 16, 2016 during the presentation of the Aadhaar Bill.

Article 21

• 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.

Right to Privacy: Constitution

• The Constitution of India does not specifically guarantee a “right to privacy”.
• However, through various judgments over the years, Indian courts have interpreted the other rights in the Constitution as giving rise to a (limited) right to privacy primarily through Article 21, the right to life and liberty.

Restriction on Right to Privacy These restrictions have not been defined or elucidated anywhere and have been identified through the interpretation of various provisions and judgments of the Supreme Court of India:

• 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 in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or 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.

The debate over Right to Privacy

• Privacy has been a key focus in the recent debate on Aadhaar.
• Privacy is being interpreted in different, equally valid, ways by different sets of people.
• But the differences in interpretations are not always obvious to those who participate in the discussions.
• Computer scientists use the word privacy, they tend to it interpret from a narrow ‘data security’ perspective, whereas the lawyers in the Supreme Court have been highlighting the civil liberties angle to it.
• Such discussion has resulted in groups talking past each other.
• The solutions that the computer scientists propose, for instance, stronger standards for data security, including encryption are not satisfactory to those who highlight the civil liberties aspects of privacy.
• Constructive conversation on the issue requires a more elaborate look at the different dimensions of privacy.

Problems and issue

• Aadhaar is a product of what started as an idea of biometric identity cards for the border states in India in the wake of the increased terrorist activity.
• In a report, the consulting agency that was meant to determine the feasibility of the biometric card for border communities suggested that the identity cards could be implemented to the entire country.
• Now the government is trying to implement the new UID scheme by masking it as a developmental agenda.
• Deeper questions of surveillance by the state, invasion of privacy at all levels, and the very fact of human beings being depicted to be mere numbers in the eyes of state leading to violation of dignity arise as a result of the UID project.
• Every decision made by a human in India could be under state surveillance.
• This could potentially lead to the denial of, and access to, many important social opportunities and other facilities for a particular section of people, who could be discriminated against by the state, using the information gathered from the UID.
• The risk that the UID poses to an individual’s privacy is enormous as information that is now scattered in the public domain will be brought into one point of convergence through the UID.
• The developmental claims by the UID of security and administrative efficiency cannot be a valid justification for infringement on the right of life under the Article 21.
• The right to freedom of expression and movement as provided in the Article 19 of the Constitution of India, 1950.

What is needed to be done in context of Right to Privacy and Aadhaar?

• In view of the increased security required specifically for territorial privacy and data privacy, there should be a provision added to the Constitution of India.
• A provision that deals with multiple dimensions of privacy such as personal, territorial, communication and data/information.
• Such a provision would bring clarity as to the extent of the right to privacy.
• There is a dire need for a comprehensive privacy legislation which would ensure the protection of personal and sensitive data of people.
• There is also the need for an established regulatory body.
• This could be structured along similar lines as that of the data protection commissioner offices, which exist in Canada, Ireland,