Two years ago, on August 11, 2015, the then Attorney-General of India, Mukul Rohatgi, had declared that the constitution of India doesn’t guarantee any fundamental right to privacy and right to privacy is only a common law. Two years later, on August 24, 2017, a nine-judgE bench of the supreme court of in the case Justice K.S. Puttaswamy vs Union of India, declared that right to privacy is in fact an inalienable fundamental right that requires constitutional protection.
But what is privacy? And how will this decision change our lives?
The supreme court has not concretely defined the term privacy as of yet. The meaning and interpretation of this word will develop on a case by case basis.. However, this interpretation can be very subjective and fluid and for the purpose of putting things into better perspective privacy was classified into types. The main types being:
- Physical Privacy:
The term physical privacy can be defined as the preventing of intrusion into someones physical space or solitude. This means that an individual has a right to be protected from being stalked and from anyone trying to violate their personal space and their right over their body. This includes the biometrics, iris scans and the finger print scan.
- Informational Privacy:
This right deal with the personal data of oneself. Confidentiality agreements between lawyers and client, doctors and patients, employers and employees are examples of informational privacy. These agreements basically state that a person’s personal information shared to someone else in confidence and for a particular purpose cannot be given out to any person not authorized to have it, nor can it be misused under any circumstances.
- Technological Privacy:
What do I do over the internet, who I talk to over the phone, what do I buy online, this and much more comes under the ambit of technological privacy. In todays day and age where our dependency on the technology is only increasing, it becomes even more imperative that it be protected.
The more that we read about it the more we realise that privacy is not an alien concept. It is not just leave me alone or let me be, it is much more. It has consequences that affects every individual’s life, not just the rich or the elite few, who goes about living his routine life without even realising that he is probably being watched or his personal information is probably being handed over to some service provider that will more likely than not send a promotional text message to his number very soon.
So why this question now? What got the ball rolling?
The answer is a government scheme and an aware citizen.
The Aadhar card was the governments way of making sure that the benefits made for the upliftment of the poor, reached the poor. So, they gave everyone a unique identity code. However, for this purpose everyone was required to give their personal details, provide the government with their picture, finger print and iris scan and was let the government know how much they earn, where they reside and what do they do. So, when initially contested, the government citing the example of previous case laws, clearly stated that the constitution doesn’t recognize privacy as a fundamental right. However, the petitioners challenged the government, put on an aggressive fight and eventually triumphed.
To understand how this decision is going to bring about changes in the country, it is important to understand what led to this decision.
This isn’t the first time the question of privacy has been brought in front of the court. The court has its first encounter with this issue in the case of M.P. Sharma VS. Satish Chandra, 1954. It revolved around the constitutionality of a government to perform a search and seizure of documents on a person against whom a First Incident Report ( F.I.R.) has been lodged. The court then ruled that the constitution did not protect the right to privacy and that the search and seizure was a “temporary interference for which statutory recognition was not unnecessary” and deemed it to be a reasonable restriction under the constitution.
The second encounter was in the case Kharak Singh VS.State of Uttar Pradesh, 1962. This case revolved around Kharak Singh who was let go off a dacoity charge due to lack of evidence, however the police of Uttar Pradesh kept him under surveillance and he was constantly followed and his movements were attentively monitored. Kharak Singh went to the court and stated that this was a violation of his fundamental right and the defense contested that it was for a greater good and so it was a reasonable restriction under the constitution. In a majority judgment, the court ruled that “privacy was not a guaranteed constitutional right”. It however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy. The provision allowing domiciliary visits was however struck down as unconstitutional. It also noted that the bundle of fundamental rights under the were self-contained and mutually exclusive.
These observations were based on the Supreme Court’s then-doctrinal position on fundamental rights crafted in the A.K. Gopalan vs State of Madras judgement in 1950. This position held that the fundamental rights guaranteed by Article III of the Constitution existed not as an interlocking grid but in silos, which means that they were not interlinked to each other or dependent on each other.
The petitioners thwarted these judgements in the court by stating that the fundamental rights provided by the constitution were not mutually exclusive, in fact they were interlinked. The council representing the petitioners argued that right to privacy was imperative for the implementation of the golden triangle (Article 14, 19 and 21). It was later cleared that right to life and a right to dignity couldn’t be implemented without a right to privacy and therefore even though it was never explicitly mentioned in the constitution, right to privacy is a very integral part of the fundamental rights protected by the law of the land.
Thus, after 70 years of independence and 63 years of the birth of our constitution, right to privacy was recognised and accepted as a fundamental right.
The immediate question after this judgement was about the legality of The Aadhar card scheme.
What exactly will happen to the Aadhar card, only time will tell. The government now must prove that all the information collected by the government is safe and that the government isn’t misusing any of the data collected by them.
The government collects three types of information under the Aadhar act; biometrics, identity and personal.
The biometrics include the iris scan and the finger print scan. This is the core information and the government is bound by the act to protect it. The CIDR can only be accessed for authentication and even though this database can be hacked, there are provisions in the act to safeguard this information.
The second type of information collected under the UIDAI act is the identity information. This includes detail like the Aadhar number, name, address, birthdate, and contact details. However instead of safeguarding this information, under the act the government has mentioned that this information may be given to ‘requested entities’, the term ‘requested entities’ has not been clearly defined which means that at this stage anyone who requests the government for information will most probably receive it.
The third type is personal information and although the term personal hasn’t been mentioned anywhere in the act, this information includes but isn’t limited to a person’s activities such as what a person buys, how much a person earns, where the person is travelling and more. This information isn’t particularly safeguarded in the act. This means that more than the identity or biometrics information it is the misuse of personal information that we should actually fear. So, the next time a person buys a railway ticket and uses the his Aadhar as identity proof, everyone who has access to the server will know where the person is travelling and how. And since all the databases are interconnected, anyone having the access can retrieve this data and use it.
Unfortunately, these aren’t the only loopholes in the act. The act does not have any provision to stop the government from interlinking all the databases or from using any of these databases. Even the information that is safeguarded can be used when the question of national security arises, however the term national security has not been defined and neither have its boundaries been established. This enables the government to retrieve information and have an excuse to get away with it.
The government however, in the hearing had disclosed to the court that it is going to build a ten-member commission to exclusively look into ways to protect data and to form robust data protection laws. This commission will be led by the former Supreme Court Judge, BN Shrikrishna.
The UIDAI scheme is an important scheme to make sure that all the government subsidies and helps reach the right people, however this cannot be done at the cost of privacy or personal security.
What follows this judgement will be interesting to watch and follow. The judiciary has thus proved that the government is answerable and under the ambit of the law. The Supreme Court of India has made it very clear that no citizen of India should be made to choose one right over the other.
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