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Right to privacy: What it means and how it got here

By Rithvik Mathur

The Indian Courts’ tryst with the right to privacy began with several petitions against the Aadhar scheme. The petitions, relating to data protection and privacy, were clubbed under the case Justice (retd.) K.S. Puttaswamy v. The Union of India. As a consequence, a five-judge Constitutional bench was tasked with the sole objective of deciding the position of privacy under article 21 of the Indian Constitution. This was then referred to a nine-judge bench of the Supreme court, presided over by Chief Justice JS Khehar. This was the first nine-judge bench to have sat in over a decade.

The bench unanimously declared privacy to be a fundamental right. This decision overruled the judgement of the 1958 eight-judge bench in M.P Sharma v. Satish Chandra and of the 1961 six-judge bench in Kharak Singh v. State of Uttar Pradesh, both of whom denied constitutional protection to the right to privacy.

The history of rulings on privacy

When the Aadhar Scheme was constitutionally challenged in 2015, the Union of India cited the M.P. Sharma and Kharak Singh cases. They claimed that these cases refuted the scheme’s violation of privacy as the petitioners’ main argument. However, the M.P. Sharma case had only rejected the importing of American Fourth Amendment rights into the Indian Constitution, not the inclusion of the right to privacy itself. The Kharak Singh case had dealt with surveillance and did not specifically refer to the right to privacy. 

Later judgments even affirmed the extension of constitutional protection to privacy rights. It was argued that these judgments were not sound since they were delivered by smaller benches. Therefore, the nine-judge bench was instituted to evaluate the rulings of these controversial cases. This bench held that the rulings in the two aforementioned cases did not invalidate the right to privacy.

Relevance of Aadhar in privacy arguments

The petitioners against the Aadhar scheme argued about the dangers of large-scale data collection. Their opposition was based on the liability of data leaks and doubts about data storage and its use. The fact that the organisations having access to this data remained confidential further supported these arguments.

In return, the Union of India argued for Aadhar as a solution to corruption and social inequality. They argued that the right to privacy benefited a small number of ‘elite individuals’. This explanation was deemed unsatisfactory by the nine-judge bench.

A committee has been constituted with retired Supreme Court judge, Justice B. N. Srikrishna, as its chairperson. The committee’s goal is to make data protection laws in India more robust. In the absence of such laws, there is a severe threat of misuse of the data collected for the Aadhar Scheme.

India’s relative stance on privacy protection

India has acceded to the International Covenant on Civil and Political Rights that protects the right to privacy from “arbitrary or unlawful interferences”. The Universal Declaration of Human rights also protects the right to privacy in article 12.

The Protection of Human Rights Act 1993 made these documents an ‘Instrument of Human Rights’ for Indian law to follow. This was an important step, as in the case—Vishaka v. State of Rajasthan, where the courts held that in the absence of domestic law, instruments of human rights would be applicable. Therefore, India has an obligation to uphold these laws to the full extent—without restricting the definition of privacy.

The judgment relied upon countries such as the United Kingdom, the United States of America, South Africa, and Canada, all of whom provide fundamental protection to the right to privacy. Several case laws detailed in the judgment highlight the wholesome protections afforded to privacy, with non-restrictive definitions.

Wider implications of the judgement

This case had some noteworthy features. It placed information privacy, personal intimacies, sexual orientation, the home and other interests under the right to privacy. It expressly mentioned that this was not an exhaustive list of entitlements and interests within the right to privacy. The verdict has wide-ranging implications for various domains:

  • Homosexuality: With the recognition of sexual orientation as an entitlement under the right to privacy, the courts may soon decide that Section 377 of the Indian Penal Code is invalid.
  • Abortion: Present abortion laws may be challenged. Though pregnancies may currently be terminated prior to 12 weeks, there are several structural barriers that make this difficult.
  • Aadhar case: Although the judgment affirms information privacy, it also protects legitimate interests of the government. The Aadhar case will now shift focus to decide whether these interests are legitimate and investigate less invasive alternatives.
  • WhatsApp privacy case: Though India lacks the data protection laws that protected European and American citizens from WhatsApp’s sharing of information with Facebook, the tables may turn with a stronger definition of informational privacy.
  • Personal law: The Shayara Bano petition, or the triple talaq petition, called nikah-Nama and polygamy unconstitutional. Privacy may provide additional grounds for protection here.
  • Retrospective action: The court has remained silent on whether the right to privacy is retrospective or prospective. This may reopen previously resolved cases.

The Pandora’s box that this comprehensive judgment opened has far-reaching consequences that need to be addressed. This case, along with the triple talaq, comes as a breath of fresh air after the stifling judgments earlier. Ultimately, this is a much-needed step in the right direction, so that the legal system can keep pace with technological and economic development.


Featured Image Source: Wikimedia

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