What is Right to Privacy?

On 19 July 2017, the CJI Jagdish Singh Khehar-headed nine-judge Bench of the Supreme Court started hearing arguments to debate and decide upon two important questions.

1. Whether there is any “right to privacy” guaranteed by our Constitution?
2. If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution delineating it?

Background

In October 2015, a five-member Constitution Bench of the Supreme Court (SC) was formed under the Article 145 (3) of the Constitution. The bench primarily dealt with the Justice K S Puttaswamy (Retd.) & Vs Union of India & Others case, which raised objections against the Aadhaar Card Scheme. The petitioners argue that making the Aadhaar enrollment as a precondition to avail social security benefits. As per the petitioners, Aadhaar enrollment requires the submission of demographic and biometric information and thus, it violates individuals to right to privacy.

Why a ‘9-member Constitutional Bench’ was formed by the apex court?

The 5-member Bench referred the matter to a larger 9-member Constitutional Bench to decide the matter once and for all. The 9-member Bench primarily looks into an apparent unresolved contradiction in the directives of the apex Court (in relation to the Right to Privacy) in different times by benches of different strengths.

This judgment was delivered in the MP Sharma Vs Satish Chandra case which was further reinforced in the Kharak Singh Vs State of U.P. Case in 1963.

These two judgments had dominated the top judiciary’s view on the issue of the right to privacy for decades. Unequivocally, both judgments concluded that privacy was neither a fundamental nor a guaranteed right.

In subsequent years, though several smaller Benches of two judges have held that privacy is indeed basic to the Constitution, the arithmetical supremacy of the MP Sharma (8-judge) and Kharak Singh (6-judge) cases had so far ensured that they held the fort.
For instance, in the R Rajagopal Vs State of Tamil Nadu (1994) case, which is popularly known as Auto Shanker’s case and People’s Union for Civil Liberties (PUCL) Vs Union of India case of 1997, the apex court declared that the Right to Privacy is a fundamental right as enshrined in the Constitution.

While in R Rajagopal’s case it was held that the “right to privacy” is implicit under Article 21 of the Constitution, in PUCL’s case it was stated that the “right to privacy” insofar as it pertains to speech is part of fundamental rights under Articles 19(1)(a) and 21 of the Constitution.

Why the Right to Privacy is an inalienable right?

1. Right to Privacy is an inalienable part of the Article 21 of the Constitution. Further, as India is a signatory of the Universal Declaration of the Human Rights of the UN, in which the right to privacy is a part, she should respect it.
2. Its breach is an anathema to Democracy as the privacy is a sine qua nun for self-expression.
3. Since the state agencies are equipped with powerful surveillance apparatus, the personal data (like bio metrics) are prone to be misused by the ‘elite’ in the political and administrative set up against their opponents.
4. Though the intent of the policy makers to ‘know’ their citizens better is bonafide, the lower level bureaucracy may misuse the data for petty gains.

Here’s what judges on the nine-member consitution bench said while pronouncing their unanimous verdict on privacy as a fundamental right:

Justices D.Y Chandrachud, J.S. Khehar, R.K. Agrawal and S. Abdul Nazeer 

• Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
• Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
• Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
• Informational privacy is a facet of the right to privacy.
• The submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable. It betrays a misunderstanding of the constitutional position.

Justice J. Chelameswar

• A woman’s freedom of choice whether to bear a child or abort her pregnancy are areas which fall in the realm of privacy.
• Telephone tappings and internet hacking by State, of personal data is another area which falls within the realm of privacy.
• The strictest scrutiny is the standard of compelling state interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply.

Justice S.A. Bobde

• Any interference with privacy by an entity covered by description of the “state” under law must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.

Justice Rohinton F. Nariman

• The inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India.

Justice Abhay Manohar Sapre

• Right to privacy has multiple facets, and has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement.

Justice Sanjay Kishan Kaul

• It is a right which protects the inner sphere of the individual from interference from both State, and non-State actors and allows the individuals to make autonomous life choices.
• The privacy of the home must protect the family, marriage, procreation and sexual orientation which are all important aspects of dignity

Why the Right to Privacy is not sacrosanct?

1. The right has no legal standing as it is nowhere mentioned in the Constitution of India.
2. When citizens/residents have nothing to hide, what is the problem in subsuming their privacy to legitimate institutions for the greater good of the country?
3. Instead of terming it as a breach of privacy, the initiatives should be understood as the government’s genuine effort to know their citizens in a better way which is essential for efficient allocation of scarce resources to the needy population in a diverse country like India.
4. Most importantly, no right is absolute. This principle is applicable to the ‘Right to Privacy’ also.

What is the significance of the case to the citizens?

The ambit of the Right to Privacy is no more limited to search and seizure at the physical level as construed a few decades ago (1954 MP Sharma Case). With the growing presence of individuals and the corporate in the digital sphere, coupled with the ‘monopoly’ of the government over the internet, it is high time to define the role of the state vis-à-vis citizen in matters of privacy.

For instance, the UIDAI filed a police complaint on 15 February 2017 against Axis Bank Ltd and e-sign provider e-Mudhra by alleging that they had attempted unauthorized authentication and impersonation by illegally storing Aadhaar biometrics.

Though instances of extreme encroachments on citizen privacy have not been reported in India so far, taking a cue from the international experiences like NSA's surveillance of citizens as revealed by Edward Snowden in the post 9/11 period and Rupert Murdoch-led tabloids snooping in the UK show how vulnerable citizens’ privacy in the modern society.

Conclusion

The Constitution of India begins with and represents "We the People". Nevertheless, citizens should understand that even in a democracy, no right is absolute and they have to subsume a part of their rights to enable the government to function in an effective manner.

Other Issues

Latest update

Recognising the importance of data protection and keeping personal data of citizens secure and protected, Ministry of Electronics and Information Technology (MeitY), Government of India has, on 31st July 2017, constituted a Committee of Experts under the Chairmanship of Justice B N Srikrishna, Former Judge, Supreme Court of India and comprising of members from Government, Academia and Industry to study and identify key data protection issues and recommend methods for addressing them. The committee will also suggest a draft Data Protection Bill. Protection of Data is expected to provide a big boost to Digital economy of the country.