A nine-judge Constitution Bench of the Supreme Court led by Chief Justice of India J S Khehar will on August 24 deliver its judgment on the question whether right to privacy of citizens is a fundamental right under the Constitution.
The question under consideration is important as, in the words of one of the judges on the Bench, Justice D Y Chandrachud, privacy means “the right to choose solitude if I want solitude or the freedom to socially co-habit, that is, if I want it”. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from State surveillance, dignity, confidentiality, compelled speech, freedom to dissent or move or think.
The Supreme Court’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect. The judgment, if it declares privacy as a fundamental right, would finally reconcile our laws with the spirit of Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation.
The immediate effect of the judgment would be felt on the government’s Aadhaar scheme which collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme. A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity.
The petitioners argued that Aadhaar enrollment is the means to a “Totalitarian State” and an open invitation for personal data leakage. The government countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling State interests and is not an absolute right.
It reasoned that collection and use of personal data of citizens for Aadhaar – now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights. The government claims Aadhaar is a panacea to end corruption in public distribution, money laundering and terror funding. Plagued by contradictions in past judicial pronouncements on whether privacy is a fundamental right or not, a five-judge Constitution Bench of the Supreme Court finally decided to refer the question to a nine-judge Bench.
The apprehension expressed by the Supreme Court about collection and use of data is the risk of personal information falling in the hands of private players and service providers.
Both government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties. National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.
The Supreme Court has repeatedly asked the government whether it has plans for setting up a “robust data protection mechanism”.
On the final day of the arguments on August 6, the Bench had reiterated that the “State is obliged to put a robust personal data protection mechanism in place in this digital age”.
(The article was first published in www.thehindu.com)