“This Right to Privacy issue came to the fore mainly due to the Aadhar enrolment drive, which requires citizens personal information including bio-metric data like iris scanning and finger prints, which resulted in controversy regarding its potential to be mis-used. As Cyber space is a vulnerable space and very prone to theft and threat, so the cyber security issue is inbuilt. Aadhar lacks any statutory back up and is executed on an executive order, which also raises many doubts and the right of privacy is being sought to relieve people from this state-run initiative.“
Right to Privacy
It refers to respecting and ensuring the privacy of the individual but it is not explicitly mentioned in the Constitution. The nine-judge Constitution Bench of the Supreme Court in a landmark unanimous decision has declared right to privacy a fundamental right will be protected as intrinsic part of Right to life and personal liberty under Article 21 of the constitution of India.
Importance of Right to Privacy
- The right to personal liberty of human is unsubstantial without adequate protection for right to privacy.
- The right to dignity of each individual as a human being is incomplete without the right to privacy and reputation.
- The ability to make choices and decisions autonomously in society free of surrounding social pressure, including the right to vote, freedom of religion — all of these depend on the preservation of the “private sphere”.
- The advent of modern tech tools has made the invasion of privacy easier and made cyber data more vulnerable to theft and misuse.
The present status of Right to Privacy
Right to Privacy does not find any mention in the Constitution. This right has been picked from Article 19 and 21 which deals with right to life and liberty. In the absence of clarity, it has been defined only by a string of judgements. As early as 1954, the apex court observed in a ruling that right to privacy is not a recognised right listed under Article 19 of the Constitution.
Some important judgements in regard to Right to Privacy
- Kharak Singh vs. State of UP – Extending the dimension of ‘personal liberty,’ the apex court for the first time declared right to privacy to fall under the purview of Article 21 and defined the right of personal liberty in Art. 21 as a right of an individual to be free from restrictions or encroachments on his person.
- Govind vs. State of MP – The SC held that right to privacy cannot be made an absolute right. Subject to reasonable restrictions, the right to privacy could be made valid.
- Rajagopal vs. State of T.N – The court defined privacy as part of Article 21 and as a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.
- Naz Foundation vs. Govt. of NCT Delhi – The top court cited Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights which define privacy as no arbitrary interference with home, family or honour and reputation.
The recent Supreme Court verdict
The apex court on August 28, 2017, ruled that right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the constitution. The court also had voiced concern over the possible misuse of personal information in the public domain.
It held that privacy is a natural & inherent right available to all humans and the constitutional recognition is only to make it explicit. But the court also clarified that it is not an absolute right.
Reasonable Restrictions – It is pertinent at this juncture to note that the judges have referred to the reasonable restrictions and limitations that privacy would be subject to. The verdict also elaborated that such restriction should be based on compelling state interest and on a fair procedure that is free from arbitrariness, selective targeting or profiling.
The judgement finally reconcile Indian laws with the spirit of Article 12 of the Universal Declaration of Human Rights (1948) and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the arbitrary interference with one’s privacy, honour and reputation, family, home and correspondence.
Possible Positives of the verdict
- This will ensure the dignity of the citizens.
- It will impose restrictions on the government’s approach to encroach upon the private data of citizens.
- It gives impetus to the Right to personal liberty, under Article 21 of the Constitution.
Possible Negative of the Court verdict
- It can hinder the implementation of welfare schemes like Aadhar and Direct Benefits Transfer, which requires personal data of citizens, for better identification of marginalised sections and effective implementation by preventing leakages.
- Right to Privacy will also restrict police and intelligence agencies to collect private information about accused and criminals.
Future Implications of the Supreme Court Judgement
- Future of Aadhar – The judgment’s immediate impact will also be felt the most in the Aadhar project. This will significantly limits the stand that the union government will be able to take in support of the validity of the Aadhaar Act.
- Homosexuality – The judgment also implicitly overrules the 2013 judgment of the Supreme Court that upheld the validity of IPC Section 377, which criminalises homosexuality. The verdict held that the sexual identity of the LGBT community is inherent in the right to life.
- Right to Die – As an individual’s rights to refuse life prolonging medical treatment is another aspect that falls within the zone of the right of privacy, this revives the question of passive-euthanasia.
- Data Protection – As India has no statute regarding privacy or data protection, concerns were raised by the court. It expressed hope that the government would undertake this exercise after a careful balancing of privacy concerns and legitimate state interests.
- Beef & Alcohol consumption – the Supreme Court in the current judgment has held that the right to food of one’s choice is part of the right to privacy. It is therefore clear that the ‘privacy judgment’ will have a bearing on matters like consumption of beef and alcohol.
Issues with Aadhar card
- Services Denied: Many instances occurred in which government and its agencies have been found insisting on producing Aadhar number as a precondition to avail public services.
- Consent: No well- informed consent about the uses of the huge amount of private data of citizens being collected.
- Exit Option: The absence of an exit option to get out of the UIDAI data base.
- No Statutory backing: The UIDAI and the Aadhar project are still functioning on the basis of an executive action since it was set up. Any action of the government should be backed by a formal statute or legislation.
- Lack of accountability: The UIDAI also lacks accountability to Parliament if there is a failure in the system and in cases of unfortunate consequence.
- Private Players: There are many private players involved in the whole chain of registering for and generation of Aadhaar numbers before the database finally goes to the government-controlled Central Identities Data Repository (CIDR), which also raises doubts about the safety of citizen’s data.
- Government should Strengthening cyber security system of the Aadhar and other programme dealing with large amount of citizens’ data.
- It is imperative that the Union Government enact a privacy legislation that clearly defines the rights of citizens consistent with the promise of the Constitution. And also bringing out appropriate law against violation of right to privacy.
- The government should factor in privacy risks and include procedures and systems to protect citizen information in any system of data collection.
- It should create institutional mechanism such as Privacy Commissioner to prevent unauthorised disclosure of or access to such data.
- Our national cyber cell should be strengthen to deal with any kind of cyber attack
In the name of Right to Privacy outright stalling of Aadhar doesn’t fare well for social security programs of the government and also in its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era. So, government initiative to use data for improving governance should be continued in tandem with protection of privacy of the citizens.