History of the Right to Privacy Act in India
In 1958 and 1962 respectively, an eight judge bench and a six judge bench of the Supreme Court declared that privacy isn’t a basic right for all citizens. But since the 1970s, two and three judge benches have consistently held the view that privacy is a basic right.
Right to Privacy and Aadhaar
07/19/2017: A 9-judge constitution bench is set to return to the case with respect to petitions challenging the Aadhaar scheme.
Senior Advocate Gopal Subramaniam initiated the hearing before a bench headed by Chief Justice Jagadish Singh Khehar saying that rights to privacy and right to liberty are natural human rights.
The nine-judge bench also comprised of Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.
The bench is dealing with right to privacy. Petitions challenging Aadhaar would be returned to a smaller bench.
Gopal Subramaniam: “There are preliminary values which are to be read with fundamental rights. The preamble has a multiplicity of expressions and includes some of them from the American and other continental Constitutions.”
He further added: “Liberty is the fundamental value of our Constitution. Life & liberty are natural existing rights which our Constitution has. Can liberty be expressed at all without any privacy? At least with regard to all the Fundamental Rights of the Constitution?”
Hearing after 2 PM
Hearing resumes at 2 PM. Gopal Subramaniam, Soli Sorabjee and Shyam Divan appear for petitioner.
Shyam Divan: “The UN Human Rights Council appointed the rapporteur because privacy is a global concern. If in the digital age we do not have a fundamental right to privacy, any stature can be passed, and the citizen will have no recourse.”
CJI JS Khehar: “The report says that privacy is a basic human right in international law.”
SD: “Yes. It is an internationally recognized human right.”
Justice J Chelameswar says degree of protection higher if it refers to a Constitution Part 3 right. He also referenced similar acts in US/European Constitutions and how they went from a common law to a human right.
Right to Privacy in the USA was guaranteed by a law passed in 1974 wherein federal agencies have no right to unauthorized use of the records of individuals. Agencies are required to maintain these records and are accountable for its accuracy. Furthermore, agencies are also required to reveal the purpose for which they are collecting data.
Right to Privacy in the EU governed by the Data Protection Directive requires member states to “implement technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access” and establish judicial remedies for breaches.
Was the government relying on an archaic judgment passed by Justice MP Sharma in 1954? Journalist Prasanna S analyzes in this thread here.
Justice J Chandrachud asked senior advocate Arvind Datar, representing the petitioners, on what exactly privacy entailed. He also added that every right to make a decision may not be a part of the right to privacy.
Shyam Divan: “My body belongs to me, invasions of my bodily integrity can only be allowed under a totalitarian regime.” Source.
Human rights activist and privacy advisor Ancilla: “India has a population of 1.34 billion. If they lose their basic human right to privacy today, it will be a huge setback for the world.” Source.
Justice Rohinton Nariman: “May need more assistance from counsels on what parameters of acceptable challenges on privacy could be. So, is it that we need to do a case-by-case analysis each time, to see what aspect of privacy it is?”
Counsels and other judges: “Yes.”
Nariman: “After submissions from (Arvind) Datar that depends on the other concurrent right that is infringed. In short, it needs to be case by case.”
Bench rises. To continue on 07/20/2017.
Why is privacy so important?
A batch of petitions argues that whether privacy is a fundamental right is key to challenging the Aadhaar in the above scenario. In 2015, the then Attorney General Mukul Rohatgi told the Supreme Court that citizens didn’t have the right to privacy as per the Constitution. He subsequently repeated this argument.
What is Aadhaar? The Aadhaar is an identity card that has records of a citizen’s bio-metric data, like irises and fingerprints. This was initiated by the previous UPA government with the help of Infosys’ Nandan Nilekani. Its stated intent is to easily identify citizens/beneficiaries for government schemes, but the drawback is the total loss of privacy.
Dangers apart, the right to privacy with the exception of some rare cases is an integral part of right to liberty which is enshrined in the Indian Constitution, albeit flawed. The Aadhaar gives plenty of room for misuse of private data, much to the inconvenience of the common man, especially if it falls into the hands of irresponsible people. What is more problematic is that the Aadhaar is not secure. There have been consistent leaks of Aadhaar data which could prove dangerous. More on that here and here.
As famously said by Benjamin Franklin, one of the Founding Fathers of the United States of America: “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
The above is a case wherein the right to privacy is being discussed in the Supreme Court, since positive amends brought to the right to privacy under Article 21 of the Indian Constitution can help protect Indian citizens at least in part against the ill-effects of Aadhaar.
Other episodes involving privacy in India
1. IT Act Section 66A
On 12/22/2008, the Indian Parliament passed 8 bills in 17 minutes. One of them was the Information Technology Act Section 66A which was thus:
Any person who sends, by means of a computer resource or a communication device
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
An anonymous reader writes “ZeroPaid has a fascinating roundup of news stories surrounding the latest surveillance laws passed in India, including a first-hand account of someone writing from inside India. The legislation in question is the Information Technology Act’s amendment bill 2006, which was recently passed in the Indian parliament. Things you can’t do with the new legislation include surfing for news in Bollywood and looking up porn on the internet. The legislation also allows all transmissions over the internet to be monitored for any form of lawbreaking and permits a sub-inspector to break into your house to make sure you aren’t browsing porn on your computer.”
Of course, the first website banned under IT Act Section 66A was a porn cartoon site Savita Bhabhi. I wonder if this had anything to do with threatening national security post 26/11. If anybody knows, please let me know. Thanks!
Of course, this law was struck down by the Supreme Court on 03/24/2015.
2. Religion Head Count
2009: The center asked public and private sector companies to do a head count of people’s religions in order to end discrimination. This was also extended to the Indian Army. It caused a furor in the parliament with opposition leaders accusing the government of dividing the army on religious lines.
3. Phone Tapping for Private Calls
On May 3, 2010, The Outlook released an article on how the government tapped the phones of political leaders like Nitish Kumar, Sharad Pawar, Prakash Karat, Digvijaya Singh, etc, and extracted information, and gave a more detailed insight the following week. The then opposition leader LK Advani called for a law to protect privacy. 3 months later, a similar case caused furor in the parliament.
In 2010, BlackBerry ceded to India’s demands to install a BlackBerry server in India. Of course, this was for monitoring terrorist activities, since terrorists used BlackBerry very commonly in those years. However the data of 800,000 Indian users was exposed to the government.
In the end, it doesn’t matter who is ruling. Your privacy is at stake. We have to continuously stay awake to ensure we safeguard our basic human rights. As American author Thomas Charlton said: “The price of freedom is eternal vigilance.” To take this further, in 1965, novelist Aldous Huxley said before the radio version of his novel ‘Brave New World‘: “Eternal vigilance is not only the price of liberty; Eternal vigilance is the price of human decency.“