Right To Privacy: A Lamenting Quagmire

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It was in the landmark case of Kharak Singh v. the State of U.P. (1962) that ‘Right to Privacy’ was included as an inalienable right under Article 21 of the Constitution. But the gravity of this right was decreased by Govind v. State of M.P. (1975) in which the Hon’ble Supreme Court held that the Right to Privacy is not an absolute right and is subject to reasonable restrictions. Though there have been a plethora of judgments circumambulating privacy but not directly targeting the constitutional status of the Right to Privacy, now the fundamental status of this Right has again been challenged on the touchstone of the AADHAR CARD scheme, and the answer lies with the 9 Judge bench headed by C.J. Khehar. Albeit the bench has reserved its judgment to be pronounced someday later, the least we can do is to ‘HOPE FOR THE BEST’.

After analyzing the position of the Central Government and the arguments put forth by the Attorney-General K.K. Venugopal, it is clear that the government has pushed the Supreme Court into the dangerous territory of drawing the boundaries of the Right to Privacy. It has set the bar so low that any ruling of the Supreme Court will be celebrated if it pays lip service to the Right to Privacy, as clear from the government’s suggestion of replacing the Right as a fundamental right with a data protection statute.

This Right to Privacy was first enunciated as an international human right in the Universal Declaration of Human Rights before it found its way to the national level. Right to privacy is coterminous with other human rights such as the right to liberty, right to speech, right to equality etc. and to shrug them off would mean to shrug off democracy. This makes Right to Privacy as inevitable for the citizens of India, as these others. Vis-a-vis Right to Privacy, a data protection statute is flimsy as it can be amended, and other laws can be written to prevail over it. The government can exempt itself from the ambit of this statute. In contrast to this, if we have a strong right fundamental right than every law and every action threatening the right can be challenged before the judiciary. This will prevent the government from going through our emails, social media accounts, search engine history, cupboards, pockets or texts etc. The unrestricted monitoring of citizens can lead to comprehensive discrimination such that the HIV positive people, people with mental illness, terminal illness, divorcees or those belonging to a marginalized community are denied jobs, homes and medical care. Also, it can lead to identification and suppression of dissent in a manner reminiscent of Stasi Germany. Remember, with no independent information and no dissent, there is no democracy. And the argument that if our information is available on social networking sites then it should also be available with the government is completely fallacious because governments with their control over police, army and other institutions of force are far more powerful than social networking sites like Facebook, though we also need a mechanism to guard against the misuse of our personal data by these social networking sites.

right-to-privacy-2A nine-judge Constitution Bench of the Supreme Court, led by the 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 to the various fundamental freedoms in PART III of the Indian Constitution.

The Court overruled its verdicts in the 1950 M.P. Sharma (8 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.


About the Author:

Imaan Singh Khara (UILS, PU Campus)

Imaan Singh Khara (UILS, PU Campus)

3rd Year, BALLB(Hons.), UILS, PU

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