Date: 29 Sept, 2020
by Divya Menon, UILS, Panjab University
“Arguing that you don't care about the right to privacy because you have nothing to hide is no different than saying you don't care about free speech because you have nothing to say.”
EVOLUTION OF RIGHT TO PRIVACY UNDER THE CONSTITUTION OF INDIA
Right to privacy is not enumerated as a Fundamental right in our Constitution but, it can be inferred from Article 21. It has developed through a series of judgements over the past 60 years.
A Bench of eight-Judges in M.P. Sharma v. Satish Chandra (AIR 1954 SC 300), followed by a six-Judge Bench in Kharak Singh v. State of U.P. (AIR 1964 SC 1295) had ruled that Right to privacy was not a part of Fundamental rights guaranteed to the citizens.
Subsequent rulings by smaller Benches as in the case of R. Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264), a two-Judge Bench held that Right to privacy formed a part of Right to life under Article 21. This created confusion and divergence of judicial opinion.
To clear the air Regarding Right to privacy, a nine-Judge Bench in the famous AADHAAR Card Case of K.S. Puttaswamy v. Union of India (AIR 2015 SC 3081) unanimously held that Right to privacy was a fundamental right and AADHAAR does not violate that right.
INTERPRETATION OF RIGHT TO PRIVACY BY THE COURT
Right to privacy is the fundamental core of human dignity and is protected as an intrinsic part of the right to life and personal liberty under Part III of the Constitution.
Like any other Fundamental Rights, the right to privacy is not absolute.
Any law which stands within the ambit of permissible restrictions on this right will not be considered as encroachment, provided such law is just, fair and reasonable.
KEY TAKEAWAYS FROM THE AADHAAAR CARD CASE JUDGEMENT
AADHAAR details cannot be disclosed in the name of national security. The Supreme Court repealed Section 33 (2) of the Aadhaar Act.
Section 47 of the Act struck down: Individuals can now report any incident of data breach, unlike before when only UIDAI could file a complaint of breach.
The part of Section 57 that allowed for people to voluntarily provide their Aadhaar number to body corporates and individuals, declared unconstitutional.
The production of an Aadhaar card will not be the condition for obtaining any benefits otherwise due to a citizen.
To avoid exclusion of deserving beneficiaries, the Court recommended that suitable provisions should be made in concerned regulations for establishing identity by alternate means.
AADHAAR linking is not mandatory for digital wallets.
THE MIASMA AROUND DATA PROTECTION TODAY
In July 2017, the Ministry of Electronics and Information Technology set up a committee, chaired by Justice B.N. Srikrishna, to study issues related to data protection.
The committee submitted the draft Personal Data Protection Bill, in July 2018. The Bill was approved by the Cabinet Ministry and tabled in the Lok Sabha on December 11,2019.
The Bill aims to provide for protection of the privacy of individuals’ personal data, protect the fundamental rights of individuals whose personal data is taken by the State and provide remedies for unauthorised and harmful processing.
Criticism of the 2019 Bill: The original drafter of the Bill, Justice B.N. Srikrishna criticised the revised 2019 Bill and said, "The government can at any time access private data on grounds of sovereignty or public order. This has dangerous implications.”
While the status of the Bill is still pending, the pandemic posed a huge threat to privacy with the launch of Aarogya Setu app.
Without a statutory framework and in the absence of Data Protection law, the application’s reach is boundless.
There have been reports of employees of both private and public institutions being compelled to download the application.
SFLC.in’s advisory board member Mr. Anivar A Arvind has filed a petition in the Karnataka High Court challenging the de-facto imposition of Aarogya Setu and invasion of privacy rights in the absence of a specific legislation governing data collection and processing by it. (Anivar A Aravind v. Ministry of Home Affairs, GM PIL WP (C) 7483 of 2020)
In the latest developments of the above cited case (as on 23/09/2020) the Government of India through Ministry of Railways, Airports Authority of India and Ministry of Civil Aviation has stated on record that Aarogya Setu is not mandatory to avail rail or air services.
Following its statement, the now notified SoP by the Ministry of Housing and Urban Affairs states that installation of Aarogya Setu is advisable in nature.
Further response yet to be filed by the respondents.
Narender Kumar, Constitutional Law Of India (2019 reprint)