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A 9 member Supreme Court (SC) bench delivered a landmark judgement by unanimously declaring the right to privacy a fundamental right of constitution. The SC has categorically held that the right to privacy is protected as an “intrinsic part of right to life and personal liberty” under article 21of constitution of India. The judgment represents a quantum leap in evolution of legal jurisprudence pertaining to privacy in India.
Privacy had emerged as a contentious issue while the apex court was hearing batch of petitions challenging the center’s move to make Aadhar mandatory in government schemes.
A brief of the case
Government reasoned the collection and use of personal data of citizens for Aadhaar to provide poor direct access to public benefits, subsidies, education, food, health etc.
Aadhar was claimed as a panacea to end corruption in public distribution, money laundering and terror funding.
The apprehension was that this personal information falling in the hands of private players and service providers.
The nine-judge Bench had overruled its own eight-judge Bench and six-judge Bench judgments of 1954 and 1961. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. The right to privacy was cherished for more than 40 years in India. The government had not tested that there was a fundamental right to privacy in India. It is in this case only they chose to do so. In parallel cases such as the defamation case and in case where names of big loans defaulters was involved, nowhere the right to privacy was challenged.
The time had arrived
It is a right whose time has come and it was long overdue. The reasoning adopted by courts have destroyed multiple myths and perceptions that privacy is an elitist sentiment and poor people do not need privacy has been done away with.
It was also argued that privacy can be otherwise protected with a codified mechanism through statutes, then was there a need of it being a constitutional right?
The reason some of these rights are elevated to the degree of fundamental rights is to take it outside the purview of legislative majority so that no party or group is in a position to overturn that right. Statutory rights can be curtailed by statutes whereas a fundamental right is always going to be there and forms part of basic structure.
Technology and Privacy
Privacy is an extremely important concern in a technology intensive society and society which aims to be information based like digital India. So privacy becomes an essential concern which needs to be protected.
The judgement says that the art 21 and the rights under it are not to be judged on anvils of state action but on anvils of state action on individual freedom. Thus there has to be clear nexus between what is sought to do and its implications on people.
The larger issue is that once having made a judgement with a unanimous decision as a normative basis of one of the rights of the constitution, it would be setting in motion the view of constitution itself for setting a standard with lots of laws which the Indian state will have to take the cognisance of going along. This also means re-drafting of many acts.
This judgement will strengthen laws pertaining to personal civil liberty. There will be implications on data convergence, online authentication and whether they can be stored, shared etc.
Privacy and national security
The present judgement is because of Aadhar litigation. So what led to the reference in first place has to be understood. There must have been concerns with respect to imposition of Aadhar or application of Aadhar on privacy. So the court must have asked if it is a statutory right or constitutional right.
SC doesn’t decide on matters that are purely academic. It decides when there is a dispute.
The court will now specifically put the question- what is the purpose of Aadhar to the government in light of this decision. Multiple people have multiple answers depending on the question asked. Hence, this issue needs to be addressed specifically with regards to privacy.
From a common man’s standpoint, considering that government is encouraging schemes like digital India and penetration of technology via mobile phones, privacy has become a concern.
Also, this kind of access to technology has spurred a growth in many illegal activities.
In this context, every fundamental right can potentially be at loggerheads with national security if touched beyond a point. Which is precisely why the line has to be drawn in circumstance of each case.
Such issues have to be answered in context of case reached to the court as there is no black and white answer for it.
Privacy enjoys a robust legal framework internationally, though India has remained circumspect. Thus, this judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.
A robust data protection mechanism is what be needed for privacy to be upheld.
Connecting the dots:
SC’s judgement on right to privacy is going to have far reaching implications on lives of common man. Critically analyse.
‘Right to privacy is a fundamental right’. Elaborate in context of recent SC judgement and effect of it thereafter.