Privacy is a fundamental right under Article 21, rules Supreme Court

Krishnadas Rajagopal

A nine-judge Constitution Bench of the Supreme Court, led by Chief Justice of India J.S. Khehar on August 24, 2017 ruled that the right to privacy is intrinsic to life and liberty, thus coming under Article 21, and comes under the various fundamental freedoms in PART III of the Indian Constitution.

All the nine judges arrive at the same conclusion, though through different but concurring judgments, that right to privacy is intrinsic to right to life and liberty.

The Court overruled its verdicts in the 1950 M.P. Sharma case (eight-judge Bench) and the 1961 Kharak Singh case (six-judge bench) that right to privacy is not protected under the Constitution.

The verdict 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 scheme. A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity.

The right to privacy: Explained

Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from State surveillance, dignity, confidentiality, compelled speech, freedom to dissent or move or think.

Arguments in the right to privacy and Aadhaar case

The petitioners argued that Aadhaar enrollment is the means to a “Totalitarian State” and an open invitation for personal data leakage. The government 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.

It reasoned that collection and use of personal data of citizens for Aadhaar — now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights.

The government claimed Aadhaar is a panacea to end corruption in public distribution, money laundering and terror funding. Plagued by contradictions in past judicial pronouncements on whether privacy is a fundamental right or not, a five-judge Constitution Bench of the Supreme Court finally decided to refer the question to a nine-judge Bench.

The apprehension expressed by the Supreme Court about collection and use of data is the risk of personal information falling in the hands of private players and service providers.

Both the government and the 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, NATGRID, CCTNS, RSYB, 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 had recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.

The Supreme Court had repeatedly asked the government whether it had plans to set up a “robust data protection mechanism”.

On the final day of the arguments on August 6, 2017, the Bench reiterated that the “State is obliged to put a robust personal data protection mechanism in place in this digital age”.

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