SC Decision on Right to Privacy

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Search 24^th August 2017 http://www.newsonair.com/Main_Audio_Bulletins_Search.aspx

TOPIC: General Studies 2

• Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

A nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution. Experts have said that it is one of the most important verdict since 1973 since SC propounded a basic structure theory. This is an era where right to privacy covers many aspects and the implications it will have for various cases pending in SC.

This judgement overrules two earlier cases when right to privacy was not called as fundamental right by SC- M.P. Sharma case in 1958 and the Kharak Singh case in 1961. It was not included in part 3 of constitution which includes FR. But in other judgements, one time SC has said that it is a limited fundamental right and in other judgement said that every citizen has a right to privacy. So there have been four judgments on right to privacy as a fundamental right. The constitution makers and constitution assembly had discussed the question of including right to privacy and decided not to include it. But

Judiciary’s right to declare constitutionality

The basic point is SC has no power to create a new fundamental right but it has the authority to interpret the provisions in regards to FRs. It interpreted that right to live included right to live with dignity. In this judgement, right to privacy is included in art 21. But to say it as a creation of new fundamental right is misleading as only the parliament by constitutional amendment can create a new right. Instead, it can be said that right to privacy is a part of right to life. For example, technically it is not said that freedom of press is fundamental right. In constitution commission it was said that freedom of press be included but it wasn’t done. It was said that right to freedom of expression includes freedom of press.

Basis of the judgement

The petitioners had contended that the biometric data and iris scan that was being collected for issuing Aadhaar cards violated the citizen’s fundamental right to privacy as their personal data was not being protected and was vulnerable to exposure and misuse. The petitioners argued that privacy is a broader concept and data sharing is only one aspect of privacy.

Every right has certain limitations and restrictions. There is no absolute right and there is no absolute fundamental right. Whether the restrictions on right to privacy that the legislation with regard to aadhar- what restrictions it places on right to privacy if reasonable or not, if permissible or not in constitution is yet to be known.

When the petition was originally filed, there was no law on aadhar and it was done through executive action. Now there is a law so basic challenge to aadhar scheme is solved.

Right to privacy is multi-faceted. But there are two kinds of limitations when it comes to sharing of privacy

• The person concern can himself/herself can put limit on his/her right to privacy or can surrender the right.
• Certain rights are sold.

So rights can be surrendered/limited/sold. The state can put certain restrictions on rights. If the bank gives loan, it may ask in return for thumb impression. So, to avail the facility, the person has to sometime surrender his right to privacy.

When the finance act linked aadhar with filing of income tax return, it upheld the government decision. State extends certain facilities or gives certain rights to citizens and while giving those, it may lay down certain conditions as nothing is without restriction.

The technology has progressed so much, rights which were considered under right to privacy, it is not possible to implement them in this age. For example, the drones and satellites enter the private areas and take pictures. Earlier it would have been considered breach of privacy but it is not so today.

There will be variety of cases concerning the right to privacy. But there cannot be any uniform application of law. It will be decided on case to case basis and cannot be implemented in general capacity.

One of the important things that judges have discussed about sec 377 of IPC which criminalizes homosexuality. They have not declared it unconstitutional but have discussed it. It has said that “It is an individual’s choice as to who enters his house, how he lives and in what relationship. The privacy of the home must protect the family, marriage, procreation and sexual orientation, which are all important aspects of dignity.” One of the implication is going to have on this case as it is pending before a curative bench in SC.

Conclusion

Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution. Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human. Thus, Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.

Also read:

https://iasbaba.com/2017/09/rstv-big-picture-sc-ruling-privacy-implications/

https://iasbaba.com/2017/08/4-right-privacy-declared-fundamental-right-9-judge-bench-supreme-court-implications-will-judgement-indias-data-security-regime-examine/

Connecting the dots:

• Right to privacy is not a fundamental right but a notional right. Share your views with suitable example.