Right to privacy is important not only for our negotiations with the information age but also to counter the transgressions of a welfare state. A robust right to privacy is essential for all citizens in India to defend their individual autonomy in the face of invasive state actions purportedly for the public good. The ruling of this nine-judge bench will have far-reaching impact on the extent and scope of rights available to us all.
This article, written by Amber Sinha was published in the
Economic Times on July 23, 2017.
In a disappointing case of judicial evasion by the apex court,
it has taken over 600 days since a reference order passed in
August 11, 2015, for this bench to be constituted. Over two days
of arguments, the counsels for the petitioners have presented
before the court why the right to privacy, despite not finding a
mention in the Constitution of India, is a fundamental right
essential to a person’s dignity and liberty, and must be read into
not one but multiple articles of the Constitution. The government
will make its arguments in the coming week.
One must wonder why we are debating the contours of the right
to privacy, which 40 years of jurisprudence had lulled us into
believing we already had. The answer to that can be found in a
series of hearings in the Aadhaar case that began in 2012. Justice
KS Puttaswamy, a former Karnataka High Court judge, filed a
petition before the Supreme Court, questioning the validity of the
Aadhaar project due its lack of legislative basis (since then the
Aadhaar Act was passed in 2016) and its transgressions on our
fundamental rights. Over time, a number of other petitions also
made their way to the apex court, challenging different aspects of
the Aadhaar project. Since then, five different interim orders by
the Supreme Court have stated that no person should suffer because
they do not have an Aadhaar number. Aadhaar, according to the
court, could not be made mandatory to avail benefits and services
from government schemes. Further, the court has limited the use of
Aadhaar to specific schemes: LPG, PDS, MGNREGA, National Social
Assistance Programme, the Pradhan Mantri Jan Dhan Yojna and EPFO.
The real spanner in the works in the progress of this case was
the stand taken by Mukul Rohatgi, then attorney general of India
who, in a hearing before the court in July 2015, stated that there
is no constitutionally guaranteed right to privacy. His reliance
was on two Supreme Court judgments in MP Sharma v Satish Chandra
(1954) and Kharak Singh v State of Uttar Pradesh (1962): both
cases, decided by eight- and six-judge benches respectively,
denied the existence of a constitutional right to privacy. As the
subsequent judgments which upheld the right to privacy were by
smaller benches, Rohatgi claimed that MP Sharma and Kharak Singh
still prevailed over them, until they were overruled by a larger
bench.
The reference to a larger bench has since delayed the entire
matter, even as a number of government schemes have made Aadhaar
mandatory. This reading of privacy as a unidimensional concept by
the courts is, with due respect, erroneous. Privacy, as a concept,
includes within its scope, spatial, familial, informational and
decisional aspects. We all have a legitimate expectation of
privacy in our private spaces, such as our homes, and in our
personal relationships. Similarly, we must be able to exercise
some control over how personal data, like our financial
information, are disseminated. Most importantly, privacy gives us
the space to make autonomous choices and decisions without
external interference. All these dimensions of privacy must stand
as distinct rights. In MP Sharma, the court rejected a certain
aspect of the right of privacy by refusing to acknowledge a right
against search and seizure. This, in no way prevented the court,
even in the form of a smaller bench, from ruling on any other
aspects of privacy, including those that are relevant to the
Aadhaar case.
The limited referral to this bench means that the court will
have to rule on the status of privacy and its possible limitations
in isolation, without even going into the details of the Aadhaar
case (based on the nature of protection that this bench accords to
privacy, the petitioners and defendants in the Aadhaar case will
have to argue afresh on whether the project does impede on this
most fundamental right). There are no facts of the case to ground
the legal principles in, and defining the contours of a right can
be a difficult exercise. The court must be wary of how any limits
they put on the right may be used in future. Equally, it is
important to articulate that any limitations on the right to
privacy due to competing interests such as national security and
public interest must be imposed only when necessary and always be
proportionate.
It will not be enough for the court to merely state that we have a
constitutional right to privacy. They would be well advised to cut
through the muddle of existing privacy jurisprudence, and
unequivocally establish the various facets of the right. Without
that, we may not be able to withstand the modern dangers of
surveillance, denial of bodily integrity and self-determination
through forcible collection of information. The nine judges, in
their collective wisdom, must not only ensure that we have a right
to privacy, but also clearly articulate a robust reading of this
right capable of withstanding the growing interferences with our
autonomy.
