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This article was written by Shreetama Ghosh, a student of Rajiv Gandhi National University of Law.

– Introduction –

Should the government be allowed to interfere in conversations we have with our friends and family and investments we make with our money? These being very generalized aspects of the right to privacy, this is a right the consciousness about which has been plaguing the Government of India since the day we were decolonialised. The right to privacy is a judicially-evolved right which has yet not been given the status of a fundamental right. It is one of those rights which has been and yet has not been granted to the citizens of our country. It has been discussed in various Constitution Bench judgements of the Supreme Court and it is yet a centre for innumerable controversies.

Issues ranging from the right to privacy from one’s neighbour to that from the Government of one’s country have been internationally debated since the Snowden disclosures that took place in 2013, and India has risen against the infringement of this right largely after the passing of the Aadhar Act, 2016.

– Judicial Interpretation –

The right to privacy is the right to be left alone and one that has not been explicitly mentioned in the body of the Indian Constitution. Therefore, this right has been fleshed out by the judiciary from its existing structure, and especially the Fundamental Rights like the Articles 19(1)(a), 19(1)(d) and 21. The first case to deal explicitly with the right to privacy was M.P. Sharma v. Satish Chandra.[1] In this case, the Supreme Court refused to import the right from the American Bill of Rights into the Indian context when the Constitution-makers had not done so, in the context of searches and seizures by the State, which was important for the maintenance of security and law and order.

After a decade of this case, the Supreme Court somewhat modified its stance in Kharak Singh v. State of U.P.[2] and stating that the right to privacy is a common law right and referring to the American Bill of Rights, it concluded that the police could not intrude unauthorised into a person’s home merely because he was on the history sheet. However, the Supreme Court was still far from accepting that the right to privacy is a Fundamental Right under the Indian Constitution. However, what is even more important in this case is the dissent given by Subba Rao, J. He states that although the right to privacy is not stated in Part III of the Constitution, it is an essential aspect of personal liberty and should, therefore, be protected as a part of Article 21. In effect, all the judges in this case accepted that the right to privacy is a part of Article 21.

Another case which followed the footsteps of the Kharak Singh case is R.M. Malkani v. State of Maharashtra[3] wherein the Court held that it would protect the privacy of an innocent citizen, but not of one who is found to be guilty after such an invasion of privacy. However, the turning point came in the case of Gobind v. State of M.P.,[4] wherein the Court held that there should be a compelling State interest, similar to the “public interest” stated in Article 19(5), for the State to infringe the right to privacy, thereby providing protection for it on the lines of a Fundamental Right.

The Supreme Court then slightly digressed from the above view for a few years, trying to differentiate between a tortuous breach of privacy or confidentiality and a constitutional invasion of privacy, thereby accepting that the right to privacy is a constitutional right. However, it came back to its previous position with PUCL v. Union of India,[5] following the earlier cases that the right to privacy is protected under Article 21 and stating “public emergency” and “public safety” as the narrow restrictions on it.

Another landmark case that the Supreme Court decided was District Registrar and Collector, Hyderabad v. Canara Bank,[6] which stated that even a remote possibility of the abuse of the power to invade privacy makes any legislation constitutionally problematic. This was followed by the case of Selvi v. State of Karnataka,[7] wherein the Court held that narco-analysis and polygraph tests invaded the right to privacy of an individual, rejecting the argument of the State that these could help in controlling and preventing crimes.

Thereafter, the case of Naz Foundation v. Government of NCT of Delhi,[8] following the decision in R. Rajagopal v. State of T.N.[9] and the global trends in the development of privacy rights, stated that Section 377 of the Indian Penal Code, 1860 was unconstitutional as it infringed the right to privacy embodied in Article 21.

From the plethora of decisions discussed above, it is evident that the Court had correctly stated in the Gobind case that there can be no straightjacket formula to decide privacy cases and that the dimensions of right to privacy have to be decided on a case to case basis.

The Current Scenario

At present, the Supreme Court is hearing the PILs dealing with the Aadhar project of the Government of India. It has been contended by the leading counsel, Senior Advocate Mr. Shyam Divan, that the system of Aadhar being implemented threatens the right to bodily integrity and dignity, since every adult has the right to determine what can be done with his/her body. However, in case of Aadhar, the Government gets to decide what to do with its citizen’s biometric information and India is soon to become a country where, without parting with one’s biometric, one will be unable to access even the most basic amenities of life, including those guaranteed under Part III of the Constitution. Therefore, not only is the system taking away one’s civil rights but it is also breaching the bounds of every citizen’s personal autonomy.

The problem pointed out here is not only the kind of mass surveillance by real time tracking that the Government is trying to carry out by linking everything to a person’s Aadhar Card, but also that the collection of the most guarded information about a person is being done through private hands, creating a risk of data leaks, especially in a country where data security is very low. Not only are cases of fake identity thefts and authentication errors already taking place, there is a higher security risk to every person’s life if the centralised storage of biometrics is abused.

Conclusion –

With the boiling issue of Aadhar linkages, the Indian society has arisen to the need for recognition of the right to privacy as a Fundamental Right which cannot be breached at the merry will of the Government. So, we are hoping that the Supreme Court will not take a step like setting aside the Delhi High Court’s judgement in the Naz Foundation case, and will consider the importance of the issue before reaching a decision which will be settled law for quite some time.

Aren’t you?

[1] AIR 1954 SC 200.

[2] AIR 1963 SC 1295.

[3] (1973) 1 SCC 471.

[4] (1975) 2 SCC 148.

[5] (1997) 1 SCC 301.

[6] (2005) 1 SCC 496.

[7] (2010) 7 SCC 263.

[8] 2009 SCC OnLine Del 1762.

[9] (1994) 6 SCC 632.

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