In the second week of October 2015, a five-member Constitution Bench of the Supreme Court (SC) was formed under the Article 145 (3) of the Constitution to debate and decide upon two important questions-
1. Whether there is any “right to privacy” guaranteed under 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?
Why the issue came into limelight now?
The court decided to take up the matter while hearing the Justice K S Puttaswamy (Retd.) & Vs Union of India & Others case that dealt with Aadhaar Card Scheme. Under this case, it was contended that making the Aadhaar enrolment as a precondition to avail social security benefits is unconstitutional as it encroaches upon citizens right to privacy.
As per the petitioners, Aadhaar enrolment requires submission of demographic and bio metric information and thus, it violates individuals to right to privacy.
Contradictions with respect to Right to Privacy
The Supreme Court took up the matter as it came to its observation that there is an apparent unresolved contradiction in the law as declared by this Court in relation to the Right to Privacy.
While a nine-member judge bench of the Supreme Court led by the then Chief Justice MC Mahajan in 1954 held that Right to Privacy is not recognised by the Constitution makers as a fundamental right, and so there is no need to strain to make it one.
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
However, in later judgments, the SC pronounced that the Right to Privacy is a fundamental right as enshrined in the Constitution.
The most important of such cases are R Rajagopal Vs State of Tamil Nadu (1994) that is popularly known as Auto Shanker’s case and People’s Union for Civil Liberties (PUCL) Vs Union of India case of 1997.
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
Arguments in favour of Right to Privacy
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) is 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 bona fide, the lower level bureaucracy may misuse the data for petty monetary gains. Frequent news of BPO operators selling information of clients to fraudsters is a case in point.
Arguments against Right to Privacy
1. The right has no legal standing as it is no where 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 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.
Why the re-look is important?
Ambit of 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.
Though such instances of abuse of administrative powers or extreme encroachments on citizen privacy have not 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, Rupert Murdoch-led tabloids snooping in the UK and European Court’s order to Google on Right to be forgotten show how vulnerable citizens privacy in the modern society.
The Constitution of India begins with and represents We the People. Nevertheless, citizens should understand that, even in 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. On the other hand, the government should show restraint while dealing with citizens’ private space and must establish credible procedures to deal with instances of breach of privacy for illegitimate reasons.
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