PRIVACY IS MINE BUT NOT AS A FUNDAMENTAL RIGHT
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“Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.”
As precedent is an important source of law, it is possible to deduce that Right to privacy is a fundamental right. However, as early as 1954, the apex court observed in a ruling that right to privacy is not a recognized right listed under Article 19 under the constitution and held that it would not be possible to import the right by ‘strained construction’ but this did not bind the court to restrict the scope of Article 21 (Right to Life and Personal Liberty). The government’s move to make Aadhar mandatory for all citizens has once again triggered the debate around Right to Privacy. Critics have argued that making Aadhar mandatory will lead to the breach of confidentiality of data collected through Aadhar. Right to privacy does not find any mention in the constitution.
The Aadhar debate: The Centre told the SC that not every aspect of the right to privacy is fundamental. Attorney General KK Venugopal stated that privacy as a fundamental right was deliberately avoided from Article 21. “Privacy, as a fundamental right, could have been mentioned in Article 21 but has been omitted, this was deliberate”. Under Article 21, the concept of deprivation of rights is inbuilt, subject only to the condition that it be in accordance with law. He also argued that right to life transcends the right to privacy.
On 19 July 2017, the Supreme Court’s nine-judge bench sat to decide if privacy is a fundamental right. The question, which formed the basis of the petitions challenged Aadhar for violating privacy. The Right to privacy and the Right to freedom of press is not expressly mentioned in the Constitution of India. However, the Right to freedom of press is undisputedly considered a fundamental right unlike the former.
This right, however, has been culled from Article 19 and 21 which deals with the right to life and liberty. There is an absence of clarity regarding this, however, there are a string of judgments starting from 1962 defining privacy and what it entails.
1962: Kharak Singh vs. State of UP- Inclusion of ‘privacy’ under ‘personal liberty’. Extending the dimension of ‘personal liberty,’ the apex court for the first time declared right to privacy to falls under the purview of Article 21. The court held that at the end of the day, a person’s house is his ‘castle’ where he lives with his family and it is ‘his rampart against encroachment on his personal liberty.’
1975: Govind vs. State of MP: ‘Right to privacy is not absolute’-Despite agreeing that right to privacy is the emanation of Article 19 and 21 of the Constitution, the top court held that right to privacy cannot be made an absolute right. Subject to reasonable restrictions, the right to privacy could be made valid.
Too broad a definition of privacy will raise serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. The right to privacy will, therefore, necessarily, have to go through a process of case by case development.
Facts being similar to the Kharak Singh case, the court held that privacy and fundamental rights are present in Regulation 855 and 857 (surveillance) of the Madhya Pradesh Police, Regulations made by the government under the Police Act, 1961, if read widely.
1995: Rajgopal vs. State of T.N: Conflict between right to information and privacy –‘Right to be let alone’- Freedom of press was put in question vis-à-vis right to privacy when publishers of Tamil weekly magazine Nakkheeran decided to publish the story of Gauri Shankar alias Auto Shankar.
A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters. No one can publish anything concerning the above matters without his consent whether truthful or otherwise whether laudatory or critical.
Further, the court stated an exception in this case where a person voluntarily involves himself into a controversy or invites one, that person would not fall under the right to privacy.
2006: Naz Foundation Vs. Govt. of NCT Delhi – interference with personal liberty must follow a procedure.
Naz Foundation, a Non-Profit Organisation (NGO), filed a public litigation challenging the constitutional validity of Section 377 of Indian Penal Code, 1860 (IPC) which penalizes ‘unnatural offenses’ as mentioned in the Act.
The court held that Section 377 of IPC discriminated a particular section of individuals solely based on their sexual orientation and condemned Section 377. But it did not decriminalize the provision stating that the power to amend or repeal the section lies with the Parliament and not the judiciary.
With recent developments in the online world, social media and numerous applications catering the needs of people, the changes come with the threat to individual’s personal information made available to the public.
What is Right to privacy?
The right to privacy is an element of various legal traditions which may restrain both govt. and a private party action that threatens the privacy of individuals. Over 150 national constitutions explicitly state this right. In recent years there have been only a few attempts to clearly and precisely define a right to privacy. In 2005, students of Haifa center for law and technology asserted that in fact the right to privacy “should not be defined as separate legal right” at all. The right to privacy is our right to keep a domain around us, which includes all those things that are a part of us, such as our body, home, property, thoughts, feelings, secrets, and identity. The right to privacy enables us to choose which parts in this domain can be accessed by others and to control the extent, manner, and thing of the use of those parts we choose to disclose. It is an individual right plus a collective value and a human right.
Universal Declaration of Human Rights, 1948- Right to privacy is explicitly stated under article 12 of the UDHR. No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Anti- Romeo Squad- Recently, as an aftermath of the election of Yogi Adityanath as the Chief Minister of the state of UP, an Anti-Romeo Squad had been formed in the district following a State Govt. order. What followed were incidents of youngsters and couples being troubled in the name of the Anti – Romeo drive. When asked how the squads would identify miscreant. “They have been told to keep an eye on unwarranted acts. Action will be taken only if the squad identifies unwarranted gestures by a person or a couple.” In the Anti Romeo squads case, people were disturbed in malls, parks, stations, malls and other public places leading to infringement of the right to privacy.
Plugging leakages- The Economic survey for 2016-17 stated that 36% and 20% of public distribution system and MGNREGA funds leak from the system and can be saved by application of Aadhar. A person can withdraw money only after undergoing an Aadhar based online authentication. However, activists claim that Aadhar has become a cause for exclusion rather than inclusion. Another early fiction was that the purpose of Aadhar is to help welfare schemes. This has however been opposed by Jea Dreze (economist).
On 20th July 2017, SC observed that right to privacy is not absolute- Headed by the Chief Justice of India, Justice JS Khehar, constitution bench stated that if the right to privacy is defined as a fundamental right, the decision of this court upholding Section 377 will ‘fall’. “If privacy is about to make a choice. Then choice in what areas? Family, sexual orientation, gender, identity, surveilliance, what all?”. The judges revisited the previous rulings in 1954 and 1962 to study if they were the correct interpretations of constitutional provisions. Both the rulings rejected the idea.
The need to define privacy- The right to privacy was too amorphous a term and said that to recognize privacy as a definite right, it has to be first defined. An attempt to define the right to privacy is more harm than good, the bench said. Privacy is not sacred because the constitution does not mention it as fallacious. It does not signify that right does not exist. Privacy was probably a fundamental right and a part of individual liberty. The statement was made during the presentation of the Aadhar Bill in the Parliament. In the internet age, one should have the right to informational self-determination. There was hardly any data protection in this digital age, leading to compromise in privacy.
As a resting turn, a nine-judge bench of the Supreme Court recently delivered its verdict in Justice K.S. Puttaswamy v. Union of India, unanimously affirming that the right to privacy is a fundamental right under the Indian Constitution.
Author: Radha Singh
College: Guru Gobind Singh Indraprasth University
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