Virag Gupta practices at the Supreme Court of India. He is a former IRS officer and has worked with Ernst & Young
On August 24, 2017, India awoke to a new beginning with the Supreme Court recognising the right to privacy as a fundamental right giving it protection and enforceability through writ petitions, in what is recognised as one of the most historic judgements delivered by the Apex Court. One of the biggest contemporaneous challenges is the convergence of law and technology.The court specifically recognised the right to informational privacy, thereby paving the way for their syncretism. However, the burden of spelling out the content of this informational privacy is on the panel constituted by the government.
The government welcomed the verdict, taking a turn from the earlier stance of the Attorney General, who claimed that Indians do not have an absolute claim over their bodies and fiercely rejected the notion of privacy as a fundamental right, while also citing its irrelevance for the hungry and impoverished millions
This is also perhaps representative of the gross neglect doled upon individualistic rights and civil liberties in developing nations, where the supreme onus is laid on collectivist economic development. This is in stark contrast to the Western nations and their proactive approach. This doesn’t imply that Indians need the right to privacy any less than their American counterparts, but rather that the understanding of what the content of the right varies. Thus, Indian right to privacy needs to be an indigenous one, maintaining a delicate balance between the genuine concerns of the state and the rights of the individual, while reflecting and remaining adequate for our social realities. The content of this right cannot be imported from western countries and the courts would have to lay out its spectrum of applicability on a case to case basis.
The right toprivacy was first recognised by the Supreme Court’s 1975 decision in the case of Govind Vs. State of Madhya Pradesh. Why was the validity of the right to privacy in question if ithad been recognised as early as in 1975?As per settled norms, the Govind decision could not overrule what had been held in the Kharak Singh and MP Sharma cases as both these decisions were delivered by a larger bench. This is the contention that was advanced by the Attorney General in the Aadhaar case, as a result of which the Supreme Court was compelled to constitute a nine judge bench.
A constitutional bench of 13 judges was constituted in Kesavananda Bharati case in 1973, but only seven judges decided in favour of the doctrine of the basic structure of the constitution. The privacy issue has been finally settled now by consensus and overwhelming historical majority of nine judges. Holding privacy to be the constitutional core of human dignity, the court held that privacy includes in itself “preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation”, and it provides for a right to be left alone and safeguards the individual autonomy.
The bench further has clarified that the right to privacy is not an absolute right, and being a derivative right of Article 21 it can only be curtailed on the basis of a law which stipulates a procedure which is fair, just and reasonable. The invasion can only be made by an existing law with a legitimate aim and the invasion must be proportional to ensure a rational nexus between the objects and the means adopted to achieve the aim.
The court has settled the debate on the right to privacy and there remains no ambiguity with regard to its status. It is now a fact and not a matter of opinion that the right to privacy is now a constitutional guarantee. However, the battle is only half won. The greater challenge lies ahead with regard to spelling out the content of this right.
The judgment is bound to have repercussions on the validity of the mandatory imposition of Aadhaar, constitutional validity of criminalisation of homosexuality, the validity of the DNA Profiling Bill, and the proposed national encryption policy.
Aadhaar, which was initially proposed as anoptional unique identifier, has now been mandated by the government for activities ranging from banking, the filing of taxes, to availing of various welfare schemes of the government. The DNA Profiling Bill, 2017, has only been revised once by the government due to the scathing review it received from the stakeholders due to wide discretionary powers it conferred upon the Board envisaged under the bill. In certain case, the board even had the power to include people into the database without their consent.
Both Aadhaar and the DNA Profiling Bill deal with sensitive biometric data. The issue is whether now that the right to privacy is a fundamental right; the court will interpret it in a manner that is broad enough to hold that the government cannot compel its citizenry to part with sensitive and personal biometric data.
Can the mere fact that a person has been accused of committing a severe offence sufficient to deprive him of his fundamental right to privacy?
Section 377 of the Indian Penal Code, reminiscent of the Victorian notions of morality brought into India by Lord Macaulay, should have been struck down even on the basis of what has been laid out in Kharak Singh and MP Sharma cases. Right to privacy is a fundamental right and it will be interesting to see as to how the state justifies a regime of a victimless ‘crime’ like consensual homosexuality, the commission of which cannot be proved in a court of law without violating the right to privacy of the accused. The battle on this front will be played out in the curative petition that is pending before the Supreme Court.
The importance of privacy in the cyberspace cannot be undermined in this day and age. Yet, successive governments have sought to undermine the same. Starting from the telecom licensing regime, where the internet service providers are prohibited from employing bulk encryption, to the regressive National Encryption Policy that was proposed some time back. The National Encryption Policy sought to do away with encryption altogether, making our data vulnerable to hacking and other security threats. At a time when the majority opinion on the privacy decision has dedicated an entire section to informational privacy, it will be a tough road ahead for the government to implement such a policy that seeks to do away with all the advancement that has taken place in theprotection of data.
Much of the Right to Privacy has to do with how the private commercial entities operate in India. This right would become a meaningless if it cannot be enforced against internet giants such as Facebook, Google and Whatsapp. In the ongoing litigation against Whatsapp and Facebook before the Supreme Court, their counsel has conceded that Whatsapp shares display pictures, the device details, last access details, and phone numbers with Facebook and collects information on its users for commercial purposes.
Such revelations are bound to increase in numbers as digital privacy gains prominence in India.
The Supreme Court has recognised the ‘right to informational privacy’ to be a fundamental right, which is enforceable only against the State. Therefore, first and foremost India’s surveillance programme NETRA must be scrutinised, so as to ensure that it has adequate safeguards in place. Apart from the above stated, the biggest challenge to privacy is the Indian mindset itself.
We as a society do not cherish privacy. The social construct is such that even the most personal and invasive questions are asked and answered in public settings. With the advancement of technology, there has been a change in this regard. The youth is particularly sensitive to the idea of privacy in personal life. In times to come,we will perhaps see a change in the social consciousness, where people would be more aware of their right to privacy and that will further strengthen the foundations of this right.
Till then it will remain to a large extent, a purely elitist concern. Even the privacy judgment needs to be taken with a pinch of salt, as Chief Justice Khehar who is a part of the majority opinion is the same judge who recently asked the National Investigation Agency to conduct a probe into a 24 year old woman’s decision to convert and marry a man of a faith different from that of hers.The judgment has significantly paved the way for an effective right to privacy,but much more needs to be done.
The right needs to be instilled at the societal level as in the absence of the same, the government will slowly encroach upon it like it is doing right now making it hollow and meaningless.
The Right to Privacy judgement has left it upon the legislature to come up with a solution to give substance to this right. The legislature will ask these companies to set up their servers in India, to bring them within country’s jurisdiction. It will also require a central authority that will hear the privacy grievance of the Indian citizen and come up with regulations similar to the European Union’s Data Protection Directive for evolution of privacy safeguards in parallel with the evolution of technology.
However, the most critical aspect would be to ensure timely enforcement of this right. In particular, the citizen should have the right to compensation in cases of breach of data and the option to get their data deleted permanently as and when they choose to stop making use of these online services.
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