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October 01, 2017 Sunday 11:23:46 AM IST

Reverberating Judicial Musings on Right to Privacy and the Citizenry

Cover Story

Legitimacy of any form of governance is derived from ensuring a dignified existence for its citizenry. However, very often the omnipotent state tends to overlook this major priority and tries to oppress its subjects through coveted policies and legislative endeavours. It is at this juncture that the judiciary steps in and enforces its correctional role of protecting the basic rights of citizenry. One such instance is the recent Supreme Court judgment on Right to Privacy as an inalienable basic constitutionally ingrained fundamental right.


The Supreme Court in its landmark judgment in Justice Puttuswamy (Retired) Vs. Union of India on August 24th, 2017, decided by a nine-member Constitution Bench, not only brought about a drastic change to the legal and constitutional landscape of the country but also affirmed the rights of the ordinary man to be protected from the omnipotent power of the state.


This case in fact was decided on a reference made by the fivemember Constitution Bench which was deciding on the legality of the signature policy initiative of the central government, namely, the Aadhaar Scheme.


Under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes which is being undertaken by the Unique Identification Authority of India. This database can be considered as one of the largest demographic and biometric database of the world wherein no other country has one of such a kind.


However, during the course of hearing the case, the question of privacy was being raised with regard to data procured under the scheme wherein the government raised the contention that the legal position regarding the existence of the fundamental right to privacy is doubtful. Hence, the relevance of this decision. In fact, the decision holding Right to Privacy as a constitutionally protected and recognised right can be conceived as a warning signal to the state which attempts to encroach on the private zones of its citizenry’s life by virtue of coveted policies.


The court, however, did not define right to privacy specifically but held that it inheres from right to life and liberty and other fundamental rights under Part III of the Constitution. Right to Privacy, the court quipped,is not absolute but is subject to reasonable restriction which needs constitutional justification. However, the court stated that the contours of this right need not be defined and it might be determined based on factual and contextual situations.


Now, the poignant fact due to the outcome of the decision is that the Aadhaar policy to be legally valid needs to satisfy the test of privacy which is a constitutionally recognised right. Would the implications just fall short of it?


It is this question one ponders as one goes through the judgment. The judges too were not ignorant of this fact but they were unanimous on the fact that privacy needs to be protected as it’s an inalienable expression of human dignity.


The judges interpret the right to privacy broadly, to cover a range of activity from state intrusion in the form of search and seizure to the collection and aggregation of personal data by private parties,such as employers or online platforms. It calls many practices from the ubiquitous use of CCTV to unnecessarily intrusive questions in job and university applications into question. It also casts doubt on previous Indian Supreme Court decisions, like its infamous rejection of a plea to decriminalize homosexuality.


The court also acknowledged in between that technology is in fast pace and India is also steering ahead with its own digitalisation, use of artificial intelligence etc.


The court while making clear that Right to Privacy is not an absolute right accepts the postulate that the state can at certain circumstances restrict the same. The mandate of the court was that Right to Privacy may be curtailed through law in furtherance of legitimate state interests, if certain principles of proportionality are followed. Illustrations of what is state interest was given in the judgment such as national interest, distribution of scarce resources etc.

The judges made piquant observations on the need to protect Right to Privacy in this era of digitalised world and stressed the need for data protection law as the need of the hour. It observed thus: “Humans forget, but the Internet does not forget and does not let humans forget. Any endeavour to remove information from the Internet does not result in its absolute obliterating. The footprints remain.”


It specifically pinpointed the need to preserve the right to privacy of children in both virtual and real world. The judges observed thus: “Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their “ABCs”: Apple, Bluetooth, and Chat followed by Download, E-Mail, Facebook, Google, Hotmail, and Instagram. They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.”


The Judges also raised their apprehension relating to the need to protect medical and research data. However, the court had made it clear that it was not attempting to define the right but it was something filled up later.


Thus the decision recognises the right of a citizen to be the master of his body and mind. However, as the famous adage goes, “the devil may lie in the details”. Only time and context would determine the contours of this right and to what extent it can crush the tentacles of a domiciliary state. However, certainly, this judicial

pronouncement can be seen as a reinforcement of our faith in our democratic legal scheme.

Dr. Vani Kesari A

Assistant Professor, School of Legal Studies, Cochin University of Science & Technology, CUSAT

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