What is it?
A definite legal definition of ‘privacy’ is not available. Some legal experts tend to define privacy as a human right enjoyed by every human being by virtue of his or her existence. It depends on no instrument or charter. Privacy can also extend to other aspects, including bodily integrity, personal autonomy, informational self-determination, protection from state surveillance, dignity, confidentiality, compelled speech and freedom to dissent or move or think. In short, the right to privacy has to be determined on a case-by-case basis. Privacy enjoys a robust legal framework internationally. Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation. India signed and ratified the ICCPR on April 10, 1979, without reservation. Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognises the respect for private and family life, home and communications. Article 8 mandates protection of personal data and its collection for a specified legitimate purpose.
How did it come about?
The trigger is the government’s Aadhaar scheme, which collects personal details and biometrics to identify beneficiaries for government welfare schemes. A bunch of petitions was filed in the Supreme Court in 2015 terming Aadhaar a breach of privacy. The petitioners argued that Aadhaar enrolment was the means to a “totalitarian state” and an open invitation for personal data leakage.
The government countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling state interests and is not an absolute right. It reasoned that collection and use of personal data of citizens for Aadhaar — now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits millions of poor. The government claims Aadhaar is a panacea for corruption in public distribution, money-laundering and terror funding. Plagued by contradictions in the past judicial pronouncements on whether or not privacy is a fundamental right, a five-judge Constitution Bench of the Supreme Court decided to refer the question to a nine-judge Bench.
This nine-judge Bench, led by Chief Justice of India J.S. Khehar, for the first time, is engaged in an intense debate with legal scholars and prominent lawyers on whether or not privacy is a fundamental right in the Constitution. At the same time, the judges and the legal community are vexed by the amorphous nature of privacy.
The government argues that right to privacy is not expressly included in the Constitution as the founding fathers rejected or jettisoned the idea of inclusion of privacy as a fundamental right. But petitioners insist that the recognition of privacy as a fundamental freedom is an essential deterrent against intrusion into personal space and data by state and private players in a technologically dynamic society.
Why does it matter?
The apprehension expressed by the Supreme Court about the collection and use of data is the risk of personal information falling into the hands of private players and service providers. The apprehension is best expressed in the words of Justice Chandrachud on the nine-judge Bench: “I don’t want the state to pass on my personal information to some 2,000 service providers who will send me WhatsApp messages offering cosmetics and air conditioners... That is our area of concern. Personal details turn into vital commercial information for private service providers.” Both the government and service providers collect personal data. This adds to the danger of data leakage.
The Supreme Court repeatedly asked the government whether it plans to set up a “robust data protection mechanism.” The court pointed to the fact that a large chunk of personal information is already in the public domain and gave an example of how a person accesses his Apple iPad by using his fingerprints. The court pointed out that the “state is obliged to put a robust personal data protection mechanism in place in this digital age.”