Right_to_privacy_in_india.pdf

RIGHT TO PRIVACY IN INDIA Privacy is the desire of an individual to be free of intrusion.1 Samuel D Warren and Louis Brandeis who gave the modern conception of ‘Right to Privacy’,2 define it as-

"The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."3 ‘Right to Privacy’ has been a pressing issue in India since the introduction of the AADHAAR scheme of the 12-digit unique identification number as a method of mandatory identification for every Indian. However, privacy can be viewed outside the scope of AADHAAR too. According to Bhairav Acharya, there are four parts to privacy in India. First is privacy from the press- in cases of absence of freedom of privacy from the press, there can be unwarranted disclosure of embarrassing private facts. Second is privacy against surveillance from the state- this covers both privacy of property as well as communications. The third privacy claim is of decisional autonomy, where privacy is the core essence of liberty, the deprivation of which prevents people from making fundamental choices for themselves. The fourth privacy 1 Black, G. (2011). Publicity Rights and Image. Oxford: Hart Publishing. P. 61-62,

Available at: http://www.duhaime.org/LegalDictionary/P/Privacy.aspx 2Justice K. S. Puttaswamy (Retired) and another v. Union of India and others Writ Petition (Civil) No. 494 of 2012 3 Warren and Brandeis (1890). The Right to Privacy. Harvard Law Review. Vol.4, no. 5193.

claim is made in relation to personal information, that is, information that causes identification of a person.5 RIGHT TO PRIVACY AND THE CONSTITUTION The concept of Right To Privacy has existed since the framing of the constitution even though the framers in the Constituent Assembly did not explicitly express it. Privacy right was viewed as a basic human right, and not included in Chapter 3 of the Constitution, which lays down the fundamental rights. Privacy was chiefly viewed as the citizen’s Right to Privacy in his home.6 The Preamble to the Indian Constitution emphasises the need to secure all citizens justice, liberty of thought, expression, faith and worship, and fraternity, assuring the dignity of an individual. Madhabhushi Sridhar believes that in any non-accountable administration, privacy of an individual becomes very vulnerable. In principle, anybody who feels that their privacy has been infringed can file a writ petition under Article 32 or Article 226, and challenge the state that holds data of personal information, for selective disclosure of misuse of their data.8 5 Acharya, B. (2015). ‘The Four Parts of Privacy in India’. Economic and Political Weekly,

[Online]. Vol. 50, Issue No. 22, 30 May, 2015. [Accessed 21 December 2017]. 6 Constitution of India Bill (1895). p.CIB-18. 8 Sridhar, M, (2017). Right to Privacy and RTI Act. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 38, 23 Sep, 2017. [Accessed 24 December 2017]

JUDICIAL INTERPRETATIONS Several judicial decisions over the years have shaped the interpretation of Right to Privacy. The Eight Judge Bench of the Supreme Court in M P Sharma v. Satish Chandra, District Magistrate, Delhi9, and the Six Judge Bench of the Supreme Court in Kharak Singh v. State of Uttar Pradesh 10 held that Right to Privacy was not specifically protected by the Constitution. However, in Gobind v. State of Madhya Pradesh 11 and in R. Rajagopal v. State of Tamil Nadu 12 , it was upheld as a Fundamental right. In R M Malkani v. State of Maharashtra13, the Supreme Court followed the same line of reasoning as in the Kharak Singh case while declaring Section 25 of the Indian Telegraph Act, 1885 as valid. It observed that even though Article 21 contemplates deprivation of life or liberty through a procedure established by law, it does not mean that such protection can be accorded to a guilty citizen to vindicate the law. In PUCL v. UOI14, the petitioner challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 on the premise of Right to Privacy being a fundamental right under Articles 19(1) and 21 of the Constitution. In this case, the Court construed telephone conversations to be an important ingredient of 9 (1954) SCR 1077 10 (1964) 1 SCR 332 11 (1975) 2 SCC 148 12 (1994) 6 SCC 632 13 (1973) 1 SCC 471 14 (1997) 1 SCC 301

privacy and held that phone tapping amounted to infringement of Article 21, unless permitted by a 'procedure established by law'. It was observed that "Right to privacy as a concept it may be too broad and moralistic to define it judicially. Whether Right to Privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.” In District Registrar and Collector, Hyderabad v. Canara Bank15, Right to Privacy was reaffirmed as emanating from the liberties guaranteed by Article 19 and Article 21. It was construed as a right which attaches to the person, also recognised as a right in India's international commitments under the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). A Three Judge Bench of the Supreme Court while considering the constitutional challenge to the AADHAAR scheme on grounds of violation of Right to Privacy17, referred the question of privacy in view of conflicting decisions to a Nine Judge Bench to ensure institutional integrity.18 In Justice K. S. Puttaswamy (Retired) and another v. Union of India and others19, the Court while unanimously ruling that Right to Privacy is a fundamental right as part of Article 2120 observed that privacy which has not been couched as an independent fundamental right does not detract from the constitutional protection afforded to it once the true nature 15(2005) 1 SCC 496 17Jairam Ramesh v. Union of India (W.P.(C) 231/2016) 18Justice K. S. Puttaswamy (Retired) and another v. Union of India and others Writ Petition

(Civil) No. 494 of 2012 19Writ Petition (Civil) No. 494 of 2012 20 Article 21 of the Constitution states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”

of privacy and its relationship with those fundamental rights which are expressly protected is understood.21 In 2015, the bench declared that “there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court”22 and that a bigger bench would have to be constituted to address this. The Central Government, backed by the Telecom Regulatory Authority of India, Unique Identification Authority of India (UIDAI) and various State Governments argued that citizens did not have absolute right on their body.23 However, on August 24, 2017, the Supreme Court held that Right to Privacy is “intrinsic to life and liberty”. It was declared as a fundamental right, specifically under Article 21 of the Constitution, and also as an integral part of the rights to free speech, freedom of religion, and others. In six separate opinions, the nature of privacy, its source in the Constitution, its aspects, as well as the circumstances in which the state might limit it were described.24 IMPLICATIONS OF THE PUTTASWAMY JUDGEMENT This empowering judgement of the Supreme Court presents a paradigm shift in the Court’s understanding of what constitutes fundamental rights under the Constitution. From earlier being considered as an aspect of the existing

21Justice K. S. Puttaswamy (Retired) and another v. Union of India and others 22 Puttaswamy v Union of India 2015: para 12 23 The Times of India (2017). ‘Citizens don’t have absolute right over their bodies: Government’ [online] Available at: https://timesofindia.indiatimes.com/india/citizensdont-have-absolute-right-over-their-bodies-government/articleshow/58486260.cms [Accessed 26 Dec. 2017] 24 Bhatia, G. (2017). The Supreme Court's Right to Privacy Judgement. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 44, 04 Nov, 2017. [Accessed 21 December 2017].

fundamental rights, it has now become an integral component of fundamental rights as a whole. 25 With Right to Privacy being recognised as a fundamental right, online data protection laws have a greater responsibility of ensuring an individual’s privacy online, where invasions of data privacy are difficult to detect. The anonymity available in the internet and the secure encryption of digitised data make the internet a powerful tool of conspiracy.26 Alok Prasanna Kumar believes that the impact of this judgement goes beyond data protection. The constitutional validity of the draconian “beef ban” laws, which not only criminalises the trade but also affects the rights of individuals to choose what they eat, have been examined through the lens of this judgement. Suchana Seth has addressed its impact on the use and misuse on artificial intelligence and machine learning technology.27 The judgement is a significant development for the future of legal interventions involving sexual minorities. Justice Chandrachud’s opinion held that privacy includes, at its core, preservation of personal intimacies and sexual orientations.

25 Kumar, P. (2017). Privacy After Puttaswamy Judgement. Economic and Political Weekly,

[Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December 2017]. 26 Posner, A. (2008). Privacy, Surveillance, and Law. The University of Chicago Law Review, vol.75. 27 Ibid.

The Court observed that Right to Privacy recognises personal choices governing a way of life, that it is not lost merely because an individual lives a public life.28 However, some ambiguities have risen. Firstly, while privacy was upheld as a fundamental right, it has not been clearly defined. It is now upto the adjudicators to define what the term entails.29 Secondly, “privacy” can be used as a tool by public servants to avoid accountability. Thus, there is need for more debate and discussion before the contents of the Puttaswamy judgement are concretised as core rights under the constitution. AADHAAR AND THE RIGHT TO PRIVACY While AADHAAR was formally visualised by the UPA Government as part of the Economic Survey of 2009-10,30 it was given legislative backing in March 2016 under the BJP Government led by Narendra Modi. The AADHAAR scheme collects demographic and sensitive biometric information and has been one of the primary causes behind the controversy of privacy rights in India. Some of the major debates revolving the AADHAAR initiative include its usage by private agencies as a proof of identity, over sharing of information collected, including disclosure to intelligence or law enforcement agencies, exclusive power

28 Sheikh, D, (2017). Queer Rights and the Puttaswamy Judgement. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December 2017]. 29 Gandhi, S, (2017). First Define 'Privacy'. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 35, 02 Sep, 2017. [Accessed 26 December 2017]. 30 Economic Survey 2009-10, (2010). Government of India. [Available at- http://indiabudget.nic.in/es2009-10/esmain.htm]

of UIDAI to make complaints, time period for maintaining authentication records as well as ambiguity in specifying biometric information.31 The current BJP Government has called for mandatory linking of the AADHAAR card for availing all essential and non-essential services. The government believes that privacy is an elitist concern and that with linking of the AADHAAR card, fraud transactions and ghost names of beneficiaries will reduce. It aims at curbing corruption and welfare leakages through this move. Overall, the Puttaswamy judgement has been hailed with a lot of enthusiasm. However, it has also been criticised since the Court has left a certain level of ambiguity over whether the call by the government for mandatory linking of the AADHAAR is justifiable or not.



POSSIBLE STEPS TO MITIGATE CONCERNS Right to Privacy is an important and necessary right, and the Supreme Court’s recognition of this right as a fundamental right is a positive move. It serves as a safeguard and puts a check on the actions of the government. There have been many reports of faulty AADHAAR cards being issued. For instance, due to a technical glitch, over 5000 people in Madhya Pradesh had the same birth date on their AADHAAR card. 35 In another instance, the UIDAI 31 The Hindu (2017). Nine Issues to Debate on Aadhaar Bill. [online] Available at:

http://www.thehindu.com/news/national/nine-issues-to-debate-on-aadhaarbill/article8341611.ece [Accessed 26 Dec. 2017]. 35 India Times (2017). Unique Identification? 5000 Villagers in MP Have Same Birthday on AADHAAR Card. [online]. Available at-

accepted breach of data in response to an RTI query, where around 210 government websites had made AADHAAR details public.36 Such lapse on part of the issuing authority lowers the confidence of the people on the government. While the AADHAAR scheme seems like it will serve the greater good, the introduction of mandatory linking reflects that the government seems to be in a rush, not taking adequate care to ensure that sufficient measures for data protection are in place. The common defence to linking the AADHAAR is that other countries too have a similar system (like the Social Security Number that is prevalent in the USA). However, first world countries like the USA that have such a system in place also have the necessary institutional arrangements and protection systems to keep the sensitive data safe. India, currently, does not have such provisions and it is in this direction that steps must be undertaken. The UIDAI must equip itself to ensure that technical glitches and breach of data must not occur at any cost. Thus, while I believe that the Right to Privacy must ultimately serve the nation’s interests and that it cannot be absolute in any democratic setup, proper evaluation of every aspect needs to be done. The government must take up the task of reforming and strengthening the UIDAI and only after this is achieved should the linking of AADHAAR be made mandatory for all citizens. https://www.indiatimes.com/news/india/unique-identification-5000-villagers-in-mphave-same-birthday-on-aadhaar-card-336547.html [Accessed 28 December 2017] 36 Economic Times (2017). 210 Govt Websites had Made Aadhaar details public: UIDAI. [online]. Available at- https://tech.economictimes.indiatimes.com/news/corporate/210-govt-websites-madepublic-aadhaar-details-uidai/61719345 [Accessed 28 December 2017]

CONCLUSION Privacy was not a primary concern in India at the time of independence, and was deliberately omitted from the Constitution. However, it has tremendously evolved and today, it is widely relevant. The concept of Right to Privacy has been examined and re-examined several times through various judicial judgements, and it is only now that the apex judicial body of the country has recognised the privacy right as a fundamental right of every citizen. The declaration of privacy as a fundamental right has far-reaching implications. The government must examine the extent of privacy in the background of a globalised information based society. The validity of the AADHAAR scheme will have to meet the challenge of privacy as a fundamental right. Indirect issues such as implications on sexual minority communities and the beef ban among others will also have to be addressed. Thus, while this move is being widely celebrated, the state is bestowed with the mammoth task of balancing an individual’s privacy with national and economic security of the country.

BIBLIOGRAPHY Acharya, B. (2015). ‘The Four Parts of Privacy in India’. Economic and Political Weekly, [Online]. Vol. 50, Issue No. 22, 30 May, 2015. [Accessed 21 December 2017]. Bhatia, G. (2017). The Supreme Court's Right to Privacy Judgement. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 44, 04 Nov, 2017. [Accessed 21 December 2017]. Black, G. (2011). Publicity Rights and Image. Oxford: Hart Publishing. P. 61-62, Available at: http://www.duhaime.org/LegalDictionary/P/Privacy.aspx Economic Survey 2009-10 (2010). Government of India. Available at- http://indiabudget.nic.in/es2009-10/esmain.htm] Economic Times (2017). 210 Govt Websites had Made Aadhaar details public: UIDAI. [online]. Available at- https://tech.economictimes.indiatimes.com/news/corporate/210-govtwebsites-made-public-aadhaar-details-uidai/61719345 [Accessed 28 December 2017] Gandhi, S. (2017). First Define 'Privacy'. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 35, 02 Sep, 2017. [Accessed 26 December 2017]. India Times (2017). Unique Identification? 5000 Villagers in MP Have Same Birthday on AADHAAR Card. [online]. Available athttps://www.indiatimes.com/news/india/unique-identification-5000-villagersin-mp-have-same-birthday-on-aadhaar-card-336547.html [Accessed 28 December 2017] Kumar, P. (2017). Privacy After Puttaswamy Judgement. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December 2017]. Posner, A. (2008). Privacy, Surveillance, and Law. The University of Chicago Law Review, vol.75. Sheikh, D, (2017). Queer Rights and the Puttaswamy Judgement. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 51, 23 Dec, 2017. [Accessed 24 December 2017].

Sridhar, M, (2017). Right to Privacy and RTI Act. Economic and Political Weekly, [Online]. Vol. 52, Issue No. 38, 23 Sep, 2017. [Accessed 24 December 2017] The Hindu (2017). Nine Issues to Debate on Aadhaar Bill. [online] Available at: http://www.thehindu.com/news/national/nine-issues-to-debate-on-aadhaarbill/article8341611.ece [Accessed 26 Dec. 2017]. The Times of India (2017). ‘Citizens don’t have absolute right over their bodies: Government’ [online] Available at: https://timesofindia.indiatimes.com/india/citizens-dont-have-absolute-rightover-their-bodies-government/articleshow/58486260.cms [Accessed 26 Dec. 2017] Warren and Brandeis (1890). The Right to Privacy. Harvard Law Review. Vol.4, no. 5-193.