Upholding Right to Privacy

Krishna Pradeep, Director, 21st Century IAS, Hyderabad.

The privacy conundrum running for the past few years has been resolved with the Supreme Court’s landmark judgement that declared Right to Privacy is a fundamental right. This move of the judiciary has relieved the upholders of individual privacy but simultaneously sparked even stronger debates in the country as it gave rise to new questions on the private activities of the individuals. Within minutes of the judgement, a curative petition has been filed to enable a thorough revisit in the near future whenever there arises any turf between the Executive and the Judiciary.

How is upholding of privacy helpful to a common man?

1. Right to Privacy is recognized as an element at the core of human dignity.
2. Intrusion of state and its organs into the private lives of citizens can be challenged.
3. It safeguards individual autonomy and recognizes one’s ability to control vital aspects of her own life.
4. Now an individual is constitutionally protected under the Right to Liberty which includes preservation of not just private but personal intimacies that amounts to homosexual choices as well.
5. It preserves the sanctity of family life, marriage and procreation.
6. Right to Privacy pushes forward the Right to Technology that comes under Right to Development which again is an implicit subset of Right to personal liberty under Article 21.

Is the judgement creating more litigation?
The judgement cleared the jam between the two organs of the government declaring that..
a. Privacy is a fundamental right.
b. It is not absolute.

Yet, the judgement definitely pushes more litigations starting right from the day of pronouncement as the individual is taken as a unit in the declaration keeping aside a larger societal picture. The controversies may erupt in some of the cases as follows.

1. As the judgement has protected the sanctity of family life and procreation, the commercial surrogacy may be interpreted to be a personal liberty and a private matter as it involves the question of a woman’s body and her will to perform the business.
2. The erstwhile pronouncement of 377 IPC has been automatically overturned and the personal choice is respected. On the similar lines, there may be certain groups who demand prostitution to be legalized undermining the reasonable restriction of public health in the freedom of profession under Article 19. This may happen because the court has always upheld Article 21 over other FRs. For instance, 2014 criminalization of section 377 was a result of “majoritarian” “ethical” stand depriving a minority of their private rights and personal intimacy. And today, the individual rights are preferred even if minority, quoting it to be a democracy.
3. The Aadhaar row may not end as more than 115 crore population already possesses the UIDAI identity, which is being used as the proof for any transaction. It provides all the biometric information in the hands of private players such as mobile services and so on. As right to privacy is immune only from the state actors, there is no “particular” legislation that can provide protection to the residents in terms of technological/biological data.
4. The directive may be misinterpreted by various sections in terms of abortion rights and as the judgement is the most recent and latest, it can be held above the previous judgements as well as the legislative order. Thus the pregnancies may be terminated beyond the scope of Medical Termination of Pregnancies Act quoting it to be the private and personal matter. However this is an extreme step and have least probability as the court has already declared privacy to be not absolute.
5. Section 139AA of Income Tax Act made mandatory linkage of Aadhaar to PAN to eliminate ghost PAN cards which was upheld by the apex court earlier this year but has not approved mandatory Aadhaar for the poor so as to efficiently deliver the public services such as PDS, LPG, etc eliminating ghost beneficiaries. Both the judgements are contradictory although the cases are questioning the same matter. Elites’ privacy views are eclipsing over the poor’s social-economic needs. There are several lakhs of PAN holders who lost their identity quoting to be ‘ghost’ for not linking with Aadhaar. This controversy is likely to erupt immediately.
6. DNA Profiling activity which involves national security may be halted due to the privacy issue.
7. Privacy also implies to religion, marriage and divorce. Thus instant triple Talaq may re-emerge as a debate again as Article 21 is above Articles 14 and 25.

What the government can do in the light of current judgement?
A. Frame a robust legislation on the data protection and technological privacy that brings together all the punitive measures of Information Technology Act, Income Tax Act etc., at one place when it relates to the any security breach.
B. Carry forward the curative plea with high speed so as to prevent the individuals/non-state actors from ill-interpreting the judgement in their favour.
C. A clear directive of how far the privacy may be immune and the line where restriction starts needs to be indicated by the court authorities themselves instead of leaving that part on the legislature or executive.

The judgement is not anything new from Maneka Gandhi case and Rajagopal case where it was mentioned right to privacy is a fundamental right as long as it does not have the interests of others involved more primarily the national interest. Thus it is still confusion if the Executive can carry its business forward in mandatory Aadhaar and the DNA Profiling Bill citing the national security and national interest as the reasonable restrictions. It may also stand as an impediment in the needs of a knowledge society.

Published date : 16 Sep 2017 02:10PM