CASE STUDY - RIGHT TO PRIVACY 

On 24th August 2017 in the case Justice K.S Putthaswamy v. Union of India Supreme Court held that the right to privacy is a fundamental right. This verdict was given by a 9 judge constitutional bench with a 9:0 verdict which means it was a unanimous decision with all the judges saying that article 21 should be made a fundamental right.

The Supreme Court said that “the right to privacy is intrinsic to right to life and personal liberty granted under article 21 of the constitution.”

About 50-60 years earlier there were 2 rulings one was an 8 judge bench judgment in the case MP Sharma v. Satish Chandra case (1954) and six judge bench judgment in Kharak Singh v. state of UP case (1962) where the appellant was being harassed by police under regulation 236(b) of the UP regulation, which permits for domiciliary, visits at night. The supreme court held that the regulation 236 is unconstitutional and violative of Article 21, both of these rulings said that article 21 should not be made a fundamental right. But the latest ruling of 2017 has now overruled the judgment with a higher constitutional bench of 9 judges and finally, article 21 is made a fundamental right.

Now the concern is why there was a need for this verdict at this point. In 2015 the aadhar issues has started popping up and there were a lot of issues and a lot of challenges where the government wanted to bring aadhar as a mandatory service and aadhar data was to be used by the government for various social welfare schemes.

The order is based on an array of petitions that have challenged the mandatory use of aadhar cards which assign a unique 12-digit ID to every citizen. The aadhar database links iris scans and fingerprints to more than a billion people. The contentious issue of privacy had emerged when the apex court was dealing with a batch of petitions challenging the government’s move to make biometric-based Aadhar mandatory for availing the benefits of various social welfare schemes.

There were fears that data could be misused by a government that argues Indians have the right to privacy. There have been recurring reports of aadhar details being leaked. UIDAI has said that its data is secure. The 5 judge bench hearing the aadhar case referred the issue of the right to privacy to a 9 judge constitutional bench as the earlier ruling on the right to privacy was by 8 judge bench and to overrule the judgment, a numerically superior bench was required. The bench has decided in the favour of fundamental right to privacy existing under the Indian constitution. This bench did not decide the fate of aadhar, only nature, and the status of the right to privacy under the constitution. It does not comment on whether the government’s demand for aadhar to be linked to all financial transactions amounts to an infringement of privacy. That decision will be taken by a Separate and smaller bench of the Supreme Court.

The fundamental rights are enshrined in part-III of the Indian constitution from article 12-35. They are justiciable in nature .i.e they are guaranteed by the courts to all individuals equally. They prevent the establishment of an authoritarian and despotic rule in the country and protect the liberties and freedoms of the people against the invasion of the state. They operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.

Now article 21 talks about the protection of life and personal liberty.

Article 21 declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. This right is available to both citizens and non-citizens.

The Supreme Court has reaffirmed in the case Maneka Gandhi v Union of India and subsequent other cases the various other rights fall under Article 21 although they have not been mentioned in the Indian constitution.

A precise legal definition doesn’t exist for the term privacy. Some legal experts define privacy as a human right. International charters, like article 12 of the universal declaration of human rights, protects persons against “arbitrary interference” with one’s privacy. Privacy can mean a range of things: the right to be left alone, freedom of dissent, or protection from state surveillance.

We live in an era where the right to privacy is not absolute. Every day we use the Internet and other technologies to a great extent and all of us are a part of the “big data” world. Technological advancement is required to Carter the growing demand for the social, economic, and intellectual development of society. Technology can’t advance without the involvement of its users. Hence, although the right to privacy is a very important part of our lives and should protect us from data and thefts and deliberate spying by the state there should be some basic regulations to help the technological community to thrive.