Right-to-privacy

A 9 member Supreme Court constitution bench today decreed that the Right to Privacy is a fundamental right and is “intrinsic to “life and liberty”. The bench declared that this right is enshrined in Part III of the Indian Constitution. The verdict comes as a setback to the Union government that argued that the Privacy is an elitist privilege and is a common law right but not a fundamental freedom. The SC verdict brings a conclusion to the group of petitions filed in 2015 which had challenged Aadhaar as a violation of privacy, as the construct of a totalitarian regime, and as an invitation for the leakage of personal data. The question of Privacy as a fundamental right was first referred to a 5 member Constitution bench of the SC in August 2015 and was later transferred to a 9 member bench. The apex court is now set to deliberate the validity of the Aadhaar on the touchstone of the Constitution.

Earlier in 1954, an eight judge bench had ruled in the MP Sharma case that privacy was not specified under any specific article, but did not deny that privacy is a general right. Again in 1962, a six judge bench ruled in the Kharak Singh case that Right to Privacy is not fundamental. The current ruling upturns the 1962 verdict and takes a firm stand on an Indian’s Right to Privacy.

What About The Aadhaar?

The verdict of the Supreme Court bench that defines the Right to Privacy as a fundamental right is certainly not in tune with the government of India’s push to make the unique identity Aadhaar mandatory across functions and across the country. The Aadhaar is a biometrics based system and while registering for an Aadhar card (number) every citizen is required to provide fingerprints and other biometric details. The government has in recent times taken a firm stand on mandatory linkage of Aadhaar with Income Tax PAN, school records, asset holdings and even public benefit schemes.

With the verdict, a number of important question now crop up –

  • Can an Indian citizen now refuse to provide his/her biometric details to UDAI for registering with the Aadhaar?
  • What happens to the government push to make Aadhaar mandatory?
  • Has the verdict come in very late given that 99 percent of Indian adults have already enrolled for Aadhaar (as on 15 August, 2017)?

While we are yet to receive answers to these and many other unanswered questions, one thing seems clear. The government of India will not be able to impose mandatory Aadhaar linkage in many areas such as in the booking of Railway and airline tickets. This is probably the reason why the Railway Ministry withdrew its Aadhaar based ticketing system a fortnight ago. The government may yet insist on Aadhaar for social welfare schemes and for its black money prevention schemes but this too will need deliberation.

A Look At The Security Aspects

While the apex court’s verdict is generally being welcomed and hailed as a victory for the ordinary citizen, it opens up a new set of worries for the state. If Privacy is a fundamental right, its implications on the security mechanism of the state could be disastrous. Counter intelligence activities, crime and detection, surveillance and anti-subversion activities may then be deemed invasion of privacy, violation of a fundamental right. What is required of the apex court now, is for some clarity on this aspect of its verdict.

Safety and surveillance too are unanswered questions in this regard. Let us take the new threat that has parents concerned in the country. The Blue Whale Challenge, for example, is an online game or challenge that threatens the security of the children and young adults. The moderators who induce self-harm reach out through Social Media platforms and private messaging applications. Monitoring these in the interest of the safety of the people is very important but this also exposes authorities to charges such as violation of privacy. How are we going to deal with such issues?

Reasonable Restrictions

Almost all fundamental rights provided by the constitution to the citizens of India are subject to ‘Reasonable Restrictions’ in the interest of the security and the safety of the people of the country. It can safely be assumed that the Right to Privacy too will be subject to restrictions in public interest. The details of this must, however,  be worked out.

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