STRUCTURING PRIVACY : THE AADHAAR VERDICT

STRUCTURING PRIVACY : THE AADHAAR  VERDICT

This Article is written by Pushti Dublish pursuing B.A. LL.B from Galgotias University.

“If the right to privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion.”

J. Brennan William

BACKGROUND

In 2012, Justice K.S. Puttaswamy (Retd) filed a writ petition challenging the constitutional validity of the “AADHAAR” scheme introduced by the government that creates a ‘Unique Identification Authority of India’ (UIDAI) by an Executive Order under the support of Planning Commission. [1] UIDAI, not being the statutory body persistent to accumulate personal data of the residents and also containing the biometric information to generate ‘Unique Identification Number’. This number became the condition-precedent for availing the essential and non-essential services along with the withdrawal of salary. The government has made it mandatory for every citizen to link all his accounts be it a bank account, education, etc. The petition not only challenged the lack of any statutory authority backing the scheme but also the right to privacy as a fundamental right.

It is pertinent to note that the day 24th August 2017 has given a new phase to the right to privacy. The Honourable Supreme Court of India in a landmark judgment of Justice K.S. Puttaswamy (Retd) v. Union of India has declared the Right to privacy as a fundamental right enshrined in the Constitution of India. It was asserted by the court that it stems from the fundamental right to life and personal liberty i.e. Article 21 of the Indian Constitution. [2]

The Advocate General of India based his arguments on 2 cases i.e. M.P Sharma and Kharak Singh where the former case deals with infringing the right against self-incrimination under Article 20(3) and questioned the existence of the protected right to privacy. The latter judgment was confusing as on one hand it says that any intrusion in an individual’s home leads to violation of liberty (depending on the US judgment on right to privacy) and on the other hand, states that there is no right to privacy in our Indian constitution. Since, both the decisions are given by the larger bench, therefore, it’s binding on every court.

The decision was taken by a nine-judge bench of the Apex Court declaring the right to privacy as the fundamental right protected under Article 21 of the Indian Constitution by overruling the above two cases. This judgment prima facie focussed on an individual’s right against the State for the violation of their privacy and it had a great impact on the State as well as the non-state actors and enabled the government to strengthen the privacy regime by enacting a law on privacy. 

THE STORY OF PRIVACY IN INDEPENDENT INDIA

“Privacy is an ability of an individual or group to seclude themselves, or information about themselves, and thereby express them selectively.”

After independence, initially, the court considered the documented view of the fundamental rights and repudiated to read a right to privacy. The recognition of the right to privacy can be seen from the case of M.P Sharma and Kharak Singh.

In 1947, the Sub-Committee for Fundamental Rights intended to discuss on the issue of privacy in the Constituent Assembly Debate where K.M Munshi, Dr. B.R. Ambedkar and Harman Singh supported the right to privacy of persons, houses, papers, and effects against any unreasonable searches and seizures shall not be violated and no warrants shall be issued but only upon a probable cause. Other members like B N Rau and Alladi Krishnaswamy Aiyyar opposed privacy based on its impact on the investigatory powers of the police. Therefore, they decided to remove the right to privacy.

In 1954, in M.P.Sharma v. Satish Chandra, an eight-judge bench does not recognise the right to privacy against the search and seizure of documents because the constitution-makers didn’t mention it. [4]

Further in 1963, in Kharak Singh v. State of U.P., a six-judge bench held that the right to privacy is not guaranteed under Indian Constitution and an attempt to check the movements of an individual which is simply a manner in which even if privacy is invaded does not amounts to the infringement of a fundamental right protected under Part III of the Indian Constitution. [5]

After this, in Govind v. State of Madhya Pradesh, the court held that this right must include and guard the personal intimacies of the house, family, marriage, motherhood, procreation, and child-rearing i.e. subjected to restrictions on the ground of compelling public interest. [6]

In 1983, in T. Sareetha v. Venkata Subbaiah, it was held that the right to privacy includes a women’s option not to cohabit with her husband, not to have marital intercourse and to bear children and will lead to infringement only on the superior state interest. [7] The court considers this right as multidimensional. But this judgment was overruled by the case of Saroj Rani v. Sudarshan Kumar Chadha, where the law permitting the restitution of conjugal rights to prevent the failing marriages was serving a social purpose and held valid. [8]

In 1994, R. Rajagopal v. State of Tamil Nadu, it was held that it is the right to be let alone and enforceable against private actors. However, it is inconsistent with the jurisprudence of other fundamental rights only enforceable against the State. [9]

In 1998, Mr. ‘X’ v Hospital ‘Z’, this case also relates to the right to privacy against private actors and held that it should be balanced against the public interest. [10]

In 2005, District Registrar and Collector of Hyderabad v. Canara Bank held that the right is concerned with persons and not places. This means that the documents of the customer will remain confidential vis-a-viz the person, even if they are not with the customer and have been shared voluntarily with another party. [11]

In P.R. Metrani v. Commissioner of Income Tax, it was held that search and seizure provisions Under the Income Tax Act were a ‘serious invasion into the privacy of a citizen’. It should be read strictly and in a narrow sense. [12]

In 2010, Selvi v. State of Karnataka held that the mandatory administration of scientific tests like narco-analysis, polygraph, and brain-mapping is against the right to privacy and also infringes personal space. [13]

In NALSA v. Union of India, it was held that everyone, regardless of gender identity and sexual orientation, is entitled to protection from any unlawful attacks on their honour. It also includes their choice to disclose their sexual orientation or not. [14]

IT Act (Reasonable Security) Rules, The Data security rules were provided with limited protection of electronic personal data but have suffered from non-compliance under IT Act, 2000. In 2011, the first draft legislation by the government on The Right to Privacy Bill that envisaged recognizing the statutory right to privacy. After that in 2012, the report created by the group of experts formulated nine privacy principles that would inform about the privacy legislation in India. But in 2014, a new draft of privacy legislation drafted by the Department of Personnel and Training got leaked.

ISSUES RAISED

  1. Whether the Right to Privacy is an integral part of the Right to life and personal liberty under Article 21 of the Indian Constitution.
  2. Whether the decision given in M.P. Sharma v. Satish Chandra is correct.
  3. Whether the decision given in Kharak Singh v. State of UP is correct.

KEY FINDINGS

The nine-judge bench comprised of Chief Justice Khehar, Justice Chandrachud, Justice Agrawal, Justice Nazeer, Justice Chelameswar, Justice Bobde, Justice Nariman, Justice Kaul, and Justice Sapre gave a unanimous decision with all the nine judges concurring on the final order. There were 6 judges which gave separate opinions over a range of issues.

The important findings are:-

  • Right to Privacy is a Fundamental Right

The Supreme Court confirmed and held that the right to privacy is a fundamental right. It should not be read specifically in one article, as there is no one to one correspondence between the right to privacy and anyone’s right but is found in the totality of the fundamental rights enshrined in Part III of the Indian Constitution. It is a natural right of the person which subsists as an intrinsic part of the right to life and personal liberty. It is an inalienable right as it protects the person’s from the state action over its movements, home, choices they make, reproductive choices, choice of food, etc. Therefore, any state action infringing the right to privacy is subjected to judicial review.

  • Not an Absolute Right subjected to reasonable restrictions

The Supreme Court held that the right to privacy is not an absolute right subjected to reasonable restrictions. It states that the state can impose restrictions on the right for any legitimate state interests. This right may be restricted only when the state passes this three-pronged test:-

  1. Test of Legality – Existence of a law
  2. Legitimate goal – For imposing restrictions, there must be a legitimate aim behind the state action.
  3. Proportionality Test – It must be proportionate and also there should be a reasonable nexus between the means and the objects adopted to achieve them.  (Given by Chandrachud J.)

This three-fold test will monitor the state action so that any unnecessary purpose won’t be achieved in the name of state action. This will also impact the current policy of the government of the Aadhaar identity project.

  • Other Implications
  • The judgment also affected that state cannot interfere in the food choices of one as it will impact the various cases of protest on the beef ban.
  • It has affected the relationship between personal privacy and big data, mainly in the context of the use of technology by state resulting in great efficiencies.
  • It has also recognized the impact that non-State actors can have on personal privacy particularly in the context of informational privacy on the Internet.

JUDGMENT

The Apex Court has used broad interpretation while determining the right to privacy as a fundamental right which is the major achievement after years of struggle since independence. However, the upcoming judgments on the same would depend on the facts of the case and how it needs to be treated. The courts have and shortly will come across the different aspects of this judgment as well as the issues. It will likely affect the economy and the judgments also talk about the four heads and these heads are the issues concerning the right to privacy which came in the earlier judgments but finally get their status in the Puttaswamy case. They are:

  • Privacy of Space: It protects the private spaces or zones where a person has a reasonable expectation of privacy from the public arena.
  • Privacy of Body: It protects bodily integrity, and acts against physical and Psychological intrusions into our bodies and bodily spaces.
  • Privacy of Choice: It means our right to make choices about our own lives, including what we eat, what we wear, and our gender identities or sexual orientation.
  • Privacy of Information: It is our right to have meaningful control over the sharing and use of information by ourselves without any force or compulsion.

Data protection laws along with the Information Technology Act, 2000 will facilitate the country by strengthening the policy regime of the government and protecting citizens from its unauthorized use.

REFERENCES

  1. Gazette Notification (bearing No. A-43011/02/2009- Admn I) dated 28-01-2009 issued by Planning Commission, Government of India.
  2. Justice K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.
  3. M.P.Sharma v. Satish Chandra, 1954 AIR 300.  
  4. Kharak Singh v. State of U.P. 1963 AIR 1295.
  5. Govind v. State of Madhya Pradesh, 1975 AIR 1378. 
  6. T. Sareetha v. Venakata Subbaia, AIR 1983 AP 356.
  7. Saroj Rani v. Sudarshan Kumar Chadha , 1984 AIR 1562. 
  8. R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264.
  9. Mr. ‘X’ v Hospital ‘Z’, Appeal (civil) 4641 of 1998.
  10. District Registrar and Collector of Hyderabad v. Canara Bank, (2005) 1 SCC 496.
  11. P.R. Metrani v. Commissioner of Income Tax, Bangalore, (2007)1 SCC 789.
  12. Selvi v. State of Karnataka, AIR (2010) 7 SCC 263.
  13. NALSA v. Union of India, AIR 2014 SC 1863.
  14. Jyoti Panday, India’s Supreme Court Upholds Right to Privacy as a Fundamental Right—and It’s About Time Electronic Frontier Foundation (2017), https://www.eff.org/deeplinks/2017/08/indias-supreme-court-upholds-right-privacy-fundamental-right-and-its-about-time#:~:text=The%20right%20to%20privacy%20is,Part%20III%20of%20the%20Constitution. (Last visited Jun 18, 2020).

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