In layman’s terms, privacy
refers to the autonomy or confidentiality every individual is naturally bestowed with but it’s legal definition to this date, still remains unsettled. Some legal experts claim our entitlement to privacy
to be a virtue of our very existence while some extend it to aspects that include, inter alia, bodily integrity and protection from state surveillance. Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966 signed and ratified by India on April 10, 1979 offers legal protection to individuals against “arbitrary interference” with regard to one’s family and home, and any attack on one’s honour or reputation. But due to lack of a firm legal framework for implementation, the right to privacy
was not universal and absolute, often being determined on a case to case basis in India until a landmark judgement
which came in August, 2017 and changed the face of privacy
laws in India.
The right to privacy was declared a fundamental right
by an unanimous decision by a nine judge bench headed by former Chief Justice of India, Justice J.S.Khehar
himself. It held that privacy as a fundamental right
originates from the right to life and liberty which also entails sexual orientation, marriage and the sanctity of family life. It especially acknowledged the ability of an individual to control vital aspects of his/her life deriving authority from Article 21 of the Indian Constitution
. It recognized privacy to be imperative to the dignity of an individual which remains attached to a person irrespective of whether the individual is in a public space. This judgement also leaves certain obvious loopholes subject to misuse and misinterpretation as evident from Attorney General KK Venugopal’s arguments calling it a “wholly qualified right” of which all aspects do not qualify as a fundamental right
. Though the judgement has proven somewhat inadequate in curbing state surveillance with the establishment of a concept called “legitimate state interest”, it has done a fairly well job of opening doors and minds to the idea of sexuality and procreation being within an individual’s own private sphere. The judgement has led to the outright rejection of the government’s mindset that the “poor don’t need privacy”. Though the judgement does not have clear immediate implications, it doesn’t take rocket science to figure out it’s impact on the society and community in the near foreseeable future.
Perhaps the biggest conundrum surrounding the application of the right to privacy is with respect to the controversial Aadhar linkage scheme. Initially started as a means to store citizen’s identities biometrically, Aadhar linkage has now been prescribed mandatorily to file taxes, open bank accounts, get an education and to avail the benefits of certain public welfare schemes. Having introduced a certain questionability in the validity of this scheme being intrusive of the privacy of every citizen, the final decision regarding the application of this judgement to the scheme remains awaited.
The right to privacy having been accorded the status of a fundamental right, a basic human freedom and highest form of civil right, might even lead to a possible overturning of the historic blow delivered by the Supreme Court
when it overturned a progressive Delhi High court hearing and refused to strike down section 377 which criminalizes homosexuality, putting the entire LGBT community in India at risk of being further victimized and marginalised. The right to privacy judgement highly criticizes the indiscrimination meted out to the LGBT community, basing the denial of their right to privacy on their minority in a country with the second largest population in the world. It could even go as far as to challenge laws on beef and alcohol consumption by citizens, in light of the rising crimes being committed against those involved in the former.
The right to privacy also raises a number of questions with regard to the future of Data protection and related laws in India. The interpretation of the right to privacy by the judges has been wide enough to cover the activities of private parties like employers and online platforms in collection of personal data in order to curb data leakage. The consequence of this can be noticed in the form of e-mails, phone calls and messages sent by such private parties that can cause an annoyance to most and for companies to tailor their products according to the data they hold on potential customers. The judgement has also kept in mind eventual technological advancements that could initiate new ways of violating the fundamental right to privacy. This can put most private players and service providers in a delicate position, compelling them to observe every slight policy change with respect to privacy.
Irrespective of all it’s likely implications, it cannot be denied that the Right to privacy has empowered the citizens of India to fight against unsolicited state and private control. It has become a beacon of hope to the vulnerable sections of the society continually harassed by uncalled intrusions to privacy and given them the much needed right to be the master of their own lives and choices. The legal acknowledgement of the privacy of an individual has given a new definition to the concept of liberty and the right to privacy acts as a much needed safeguard of citizen’s privacy in a nation increasingly becoming more digitized everyday. It will also further lead to higher transparency and accountability in the relationship of the State with it’s citizens. This landmark judgement makes way for individual liberties and emphasizes greatly on “choice” laying the foundation stone for a more accepting, tolerant and empowered society whose privacy stays protected while the nation sets it’s course towards a more digital era.
Written by – Rashmi Birmole
ILS Law College, Pune