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October 01, 2017 Sunday 11:05:42 AM IST

Privacy Intrinsic to Life and Liberty

Cover Story

Can the state pry into the lives of its citizens and decide what they should eat and drink or how they should behave, talk or even think? No, said the Supreme Court emphatically in a landmark judgment on August 24.

 

A nine-judge Constitution Bench of the court ruled that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.

 


The decision touches the lives of all Indians. The question about the constitutional status of right to privacy arose in a bunch of petitions, led by retired High Court judge K. S. Puttaswamy, which had, in 2012, challenged the UPA government’s decision to introduce the biometric data-enabled Aadhaar ID for citizens.

 

A five-judge Bench led by Chief Justice Khehar had referred the question whether privacy is a fundamental right or not to the ninejudge Bench.

 


Reading out the common conclusion arrived at by the ninejudge Bench, Justice Khehar said the court had overruled its own eight-judge Bench and six-judge Bench judgments of M. P. Sharma and Kharak Singh cases delivered in 1954 and 1961 respectively, that privacy is not protected under the Constitution. The Union Government had argued that privacy is a common law right.

 

The bench, headed by Chief Justice of India J.S. Khehar, comprised Justices J. Chelameswar, S.A.Bobde, R.K.Agrawal, R.F.Nariman, A.M.Sapre, D.Y.Chandrachud, S.K.Kaul and S.Abdul Nazeer.

 


The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare schemes.

 

The petitioners argued that Aadhaar enrolment was the means to a “totalitarian state” and an open invitation for personal data leakage. The government had 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.

 


Aadhaar was set up as a voluntary scheme to streamline benefit payments to the poor and curtail fraud. But in recent years it has become compulsory for a growing number of services, including opening a bank account or paying taxes.

 

From July 1, the government made it mandatory for citizens eligible for Aadhaar to link their cards with the Permanent Account Number.

 


Justice D.Y.Chandrachud, quoting from the writings of Nobel Laureate Amartya Sen, said, “Criticism and critique lie at the core of democratic governance. Tolerance of dissent is equally a cherished value. In deciding a case of such significant dimensions, the court must factor in the criticisms voiced both domestically and internationally.”

 

According to experts, your right to privacy includes the right to be left alone and this also encompasses your sexual orientation. Whether you are in a gay relationship, a livein relationship, etc. comes within the purview of your right to privacy.

 


“Many people have a wrong impression that the Aadhaar card has been knocked down or is no longer valid, which is not the case. If you apply for a job, you cannot say that it is your right to privacy not to give your names or details. How Aadhaar details will be used will be decided by a separate Bench of the Court. As of now, the most important takeaway is that the right to privacy stands as a fundamental right,” according to P.H.Parekh, senior advocate and former president of the Supreme Court Bar Association,

 

The right of online and offline privacy remains the same. Even Parliament shall not be able to infringe on the right to privacy. Any law made by Parliament imposing “unreasonable restrictions” can be successfully challenged, said Narender Hooda, senior advocate, Supreme Court.

 


“This judgment has no immediate impact on social media sharing of information, surveillance cameras set up at private places by private parties or the media reporting on the private life of celebrities. Now, on the grounds of privacy, you can expect increased citizen action, government initiatives to legislate new laws and challenges to many state actions,” Mr. Rajesh Vellakkat, a legal expert said.

 

Technology has changed the way we live. In this internet age, what we read, search, buy and talk get stored, used and circulated. The websites are free and we can freely download books and songs. But this comes at the cost of our privacy and control on our lives.

 


The 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, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Networks and Systems (CCTNS), Rashtriya Swasthya Bima Yojana (RSYB), Deoxyribonucleic acid (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.

 


According to Mr. Soli Sorabjee, former Attorney-General of India, privacy, which is a human right that inheres in every human personality, has been given the status of a fundamental right. The state or other official agencies cannot snoop to find out what food one eats, who took part in the dinner nor inquire about his sex relations with his spouse or partner.

 

Mr. Pavan Duggal, cyber law expert said, “the right to privacy is now a fundamental right which applies  to every Indian’s privacy in the actual world and the virtual world. This fundamental right now gives protection to all Indians, but it is not an absolute right, as there can be reasonable restrictions for which the government has to establish a procedure.

 


This is a giant leap forward and none will be able to treat privacy as an inferior right in India. “It heralds a new era for individual rights and human dignity and strikes a blow at the unbridled encroachment and surveillance by the state and its  agencies in the common man’s life,” according to Congress president Sonia Gandhi.

 

Senior Congress leader P.Chidambaram said, “the freedom that was won in 1947 has been enriched and enlarged. Privacy is the core of personal liberty. In fact, privacy is an inalienable part of life.”

 


Indian citizens would now be protected from any kind of snooping, senior advocate Indira Jaising said. “Privacy is fundamental. It certainly has an impact on day-to-day life. This verdict prevents any kind of snooping,” she said.

 

Lawyer Prashant Bhushan said the judgement would likely impact the Aadhaar programme. “Any fundamental right is subject to reasonable restrictions by law. Whether the Aadhaar Act imposes unreasonable restrictions will have to be examined,” he said.

 


Mr. N.Venkataraman, senior advocate, Supreme Court, had a different view. “Privacy is not just an ordinary right, it is a fundamental right how. The consequences will be drastic if one breaches it. Overemphasis on privacy is like issuing free licences to our own children. The price of privacy and individual liberty can lead to the breakdown of matrimony and family structure. Respect replaces love, dignity replaces privacy and privacy replaces togetherness. India has strong fundamentals but the law is cracking time immemorial values and traditions. Transformation is unstoppable. Transformation of duty- based society into rightsbased society becomes a natural byproduct,” he said.

 

As per the judgment, “privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable”; and “privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance.”

 


This will certainly embolden women, who are aware of the implications of this verdict, to assert their independence with more force than before. That became clear when a woman, who has been fighting a case against her husband, who allegedly raped her, said in Delhi: “My right over my body is now a fundamental right. It must come under the right to privacy. Nobody, not even my husband, can violate it. A rape is a rape is a rape.”

 

Marital rape violates bodily integrity and the dignity of a woman. The exception in Section 375 of the IPC - “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape” - will now be struck down, said an activist.

 


The so-called stability of unstable families will be increasingly threatened now if one of the partners decides to enforce his/her privacy.

 

The judgment underscores that privacy includes at its core “the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” It safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his/her life.

 


There is also new hope for the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning) people living under the sword of Section 377 of the IPC that criminalises homosexuality.

 

The boundaries and content of what is considered private differ among cultures and individuals, but share common themes. Privacy may be voluntarily sacrificed in exchange for perceived benefits and often with specific dangers and losses. That is what happens in marriages when individuals submit themselves to the wishes of the other for the common good.

 


The concept of universal individual privacy is primarily associated with western culture and has remained virtually unknown in some cultures until recent times.

 

In the olden times, our concept of a married life was entirely different from what it is today. Now it is considered as a union of two individuals with equal rights, which was not the case earlier, when the wife was a virtual slave to her husband perpetually bound to him even in a hellish home. The divorce rates are increasing due to the social, economic and other freedoms enjoyed by women. But in the majority of cases, women have earned more dignity, and men tend to treat them with more respect and value. The Supreme Court verdict in the Mary Roy case in 1986 had entitled Syrian Christian women to an equal share in their father’s property, triggering a revolution of sorts in their fight against inequality.

 


Similarly, the Supreme Court on August 22 termed triple talaq as unconstitutional, freeing Muslim women from the discriminative practice so far followed by men and society.

 

A form of suppression of children in homes and schools in earlier times was corporal punishment as per the dictum “spare the rod and spoil the child.” But this was banned in schools decades ago, realising the terrible impact it had on children’s psyche. They now grow up with more self-respect and healthy emotions. The parents will have to respect their privacy too when the effect of the Supreme Court judgment trickles down to our conscience and everyday life. The parents, who have the ultimate responsibility on their children’s life, will have to reshape their attitudes and roles in moulding them in view of the new realities.

 


Family life has evolved in most societies not based on any legal framework but on human relationships often dictated by religious systems and practices. There are many healthy aspects to the family life led by Indians at large compared to that in western societies. The majority follow a traditional pattern handed down from generations that survives on mutual care, support and love, especially for the aged and the sick. The problems arise only when conflicts arise in the systems due to so many reasons, which become unbearable for the members. This is where the significance of the Supreme Court verdict arises, that has set things in the right perspective. In other cases, the old order will survive and prevail.

(With inputs from media sources)



George Abraham

Former Deputy Resident Editor, the New Indian Express, Kochi

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