LRS Correspondent

A nine-judge bench of the Supreme Court has recently passed a judgement that Indians enjoy a “fundamental right to privacy”. This right is intrinsic to the “right to life and liberty”. The judgement was in response to a petition filed by former Karnataka high court judge Justice K.S. Puttaswamy and others.

Right to privacy generally refers to “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others”1. This right becomes particularly important when individuals or groups or institutions fear that they would be unfairly treated if some information about them becomes public. For instance, a homosexual person may feel that he will be discriminated against in his company if this fact were known to the management and would like to protect it with right to privacy. The situation in India is extremely grave. People are targetted and persecuted on the basis of their caste, religion, way of living and beliefs. Therefore, there is an objective basis for people wanting to have a right to privacy.

The issue of privacy has come to limelight recently. The trigger for this appears to be several breaches in the security of biometric and other information collected under the Aadhaar scheme. A case in point is the unauthorised Aadhaar data being stored by Reliance Jio that became available in public domain in July of this year2. Many people have been fearing leakages of sensitive information and for this reason have been opposing the Aadhaar scheme.

Government has been linking one scheme after another with Aadhaar at a break-neck speed and has made it mandatory for people to link their Aadhaar number to get benefits of these schemes. Apart from LPG subsidy and public distribution system (PDS) benefits, from which widespread use of Aadhaar number started, by August 2017, government has made it mandatory for Aadhaar number to be linked for receiving benefits for over 100 of its schemes3. These include operating bank accounts, filing income tax returns, MNREGA, Jan Dhan Yojna, mobile connections, death certificates, midday meals, ASHA workers, various maternity related benefits, various grants and scholarships, housing, pension and insurance schemes and various schemes for the girl child, etc.

The petitioners had argued that right to life under Article 21 of the Constitution should include the right to privacy though it is not expressly stated in the Constitution. They also added that privacy is a broader concept and data sharing is only one aspect of privacy.

According to them “Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy”.

In response, the Supreme Court Bench observed that life and personal liberty are inalienable rights and these rights are inseparable from a dignified human existence. It also elaborated that “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 element which dwells within”.

The latest Supreme Court Ruling overrides earlier rulings of the Supreme Court which have declared that the Right to privacy is not a fundamental right.

This judgement has been welcomed by rights activists. Right to life, liberty and conscience, right to privacy as well as other rights which enable a dignified human existence are indeed inalienable rights. They cannot be given or taken away by the State. Furthermore, society has to ensure that these rights are guaranteed and enforceable.

While delivering its ruling, the Supreme Court has reiterated that reasonable restrictions can be applied on this right to privacy to serve “legitimate aims” of the State. How and in whose interests these legitimate aims will be determined have been kept in the shade. Going by past experience, we have seen that the fulfilment of fundamental rights are subject to “reasonable restrictions” which often go against the interests of people. Draconian laws such as AFSPA and UAPA gain their legitimacy through these constitutional restrictions on fundamental rights. At the same time the “privacy” of big business houses who have defaulted in paying back their loans to banks and those who have hoarded their ill-gotten wealth in foreign banks have been honoured by the government.

The recognition of right to privacy as a fundamental right will have no meaning if this right is not guaranteed and mechanisms are not put in place which would enable people to demand the enforcement of this right. Under the pretext of protecting the sovereignty and integrity of the country, the ruling class and its government should not be able to use personal information to intimidate critics and arrest those who stand up for their rights.

While welcoming the recognition of the right to privacy as a fundamental right, we have to ensure that so-called legitimate aims of vested interests are not used to restrict this right or denying it altogether.

  1. https://en.wikipedia.org/wiki/Right_to_privacy

  2. http://www.dailyo.in/variety/reliance-jio-database-leak-breach-aadhaar-online-privacy/story/1/18280.html

  3. http://www.hindustantimes.com/interactives/aadhaar-mandatory-schemes-timeline/

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