According to recent Supreme Court judgment right to privacy is integral part under Art-21 of the Indian constitution, subject to reasonable restrictions which include a threat to national security, prevention of organized crime, to improve the delivery mechanism of subsidies and to eradicate corruption.
The judgment regarding the right to privacy has been delivered by a 9 member bench of supreme court judges headed by a chief justice of Supreme Court Kehar. It was started when a bunch of petitions led by retired HC Judge KS Puttuswamy in 2012 who challenged the UPA govt. the decision to introduce biometric data enabled Aadhar.
Explanation of Aadhar: 12 digit Random issued by Indian Govt. to residents requires biometric and demographic info, Even though it is voluntary recent govt move to make it mandatory for availing schemes has raised concerns.
The question regarding the constitutional validity on right to privacy has been checked by the 8 Judges in MP Sharma case – 1954 and 6 Judges in Karak Singh case – 1962 in which has ruled that privacy was not a fundamental right but it was rejected in recent judgments.
In this judgment, the court also recognized that without the right to privacy, the right to liberty and freedom of expression cannot survive. The fact that a 9 judges bench speaking in one voice shows how much the govt. misunderstood constitutional underpinnings of privacy and its importance in securing human dignity.
Accordingly, the Supreme Court identified that the privacy of information is the subset of a right to privacy. In that ruling Supreme Court has identified a wide range of issues and included them in the right to privacy. It also said that privacy of information can be threatened by both state and non-state actors and by implication social media platforms could potentially come under the purview of the new right to privacy who possess a large amount of user data and have potential to use against without consent of users.
In the judgment, CJI Khehar said “Privacy is intrinsic to right to life and personal liberty under Act – 21 of constitution any encroachment to privacy will have to subscribe to the “permissible restrictions”, with this ruling right to privacy now find a place under part 3 of Indian constitution.
Offering an expansive meaning to privacy justice Chandrachud, Khehar, RL. Agarwal and Abdul Nazer held that privacy in its core includes “preservation of personal intimacies, the sanctity of family life, marriage protection, the home and sexual orientation’.
Justice Chalameshwar has included a woman freedom of choice to bare child abort the pregnancy freedom to choose work or not and the right to travel freely falls within the right to privacy.
1. In the long-ruling of 547 pages delivered by the Supreme Court also holds that the extent of surveillance will have to be tested against the set standard while balancing individual and state interest.
2. S.C in landmark verdict making individual privacy an F.R which impact the daily lives in ways that range from eating habits to online behavior and from sexual preferences to welfare scheme benefits.
3. By linking privacy with human dignity and preservation of personal intimacies the apex court has laid the legal ground for a fresh interpretation of controversial issues such as decriminalization of homosexuality.
Impact on section 377 of IPC:
Section 377 IPC: unnatural offenses-who ever voluntarily has carnal intercourse against the order of nature with any man women or animal shall be punished
In the famous Suresh Kumar koushal Vs Naz foundation which upheld the constitutional validity of Sec 377. This section was included in the IPC by Lord Macaulay during the latter part of 18th century despite various views from left and right corners of civil society the supreme court has absolutely included the freedom of choice of a citizen in choosing his life partner under the right to privacy, and by decriminalizing sec 377 of IPC which was mostly misused by law enforcement agencies to corner and harass the queer people has not only ensured the right to Equality under Act 14, prevention of discrimination under Art -15 but also ending the discrimination faced by them in both public and private lives.
That privacy includes at its core preservation of personal intimacies and sexual orientation. The court also notes that the right to privacy recognizes personal choices governing a way of life that is not lost or surrendered merely the individual is in public space.
This articulation of privacy as personal autonomy is also what might be used in dealing with a vast number of medical professionals across the country who insists on treating cases on homosexuality as a disease and detaining them in clinics and administering treatment against their will and also habeas corpus cases. Unfortunately, court does not make a holding on the constitutional validity of that section but it does find sexual orientation is an essential attribute of privacy.
The following are the other major areas on which the recent judgment has very vital and profound impact.
Consent/Choice: At a time of increasingly intrusive majoritarianism, the court has made it clear that “liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind”.
Data-mining: Earlier this year, India’s richest man, Mukesh Ambani, said: “The foundation of the fourth industrial revolution is connectivity and data. Data is the new natural resource. We are at the beginning of an era where data is the new oil.” The Supreme Court noted: “Recently, it was pointed out that Uber, the world’s largest taxi company, owns no vehicles. Facebook, the world’s most popular media owner, creates no content. Alibaba, the most valuable retailer, has no inventory. And Airbnb, the world’s largest accommodation provider, owns no real estate. Something interesting is happening. Uber knows our whereabouts and the places we frequent. Facebook at the least knows who we are friends with. Alibaba knows about our shopping habits. Airbnb knows where we are traveling to.”
Euthanasia: Indian law disallows medically assisted suicide. But the Bench said the right to privacy includes the right to refuse food or even medicine. Justice J Chelameswar wrote, “An individual’s rights to refuse life-prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy…”
Financial Technology: As Internet penetration increases, so does the opportunity for financial institutions to use technology to capture and service clients better. The government has been an enthusiastic backer of FinTech, using Jan Dhan Accounts, Aadhaar, and Mobile, to reach a large section of the population that lay outside the banking system. On the other hand, extensive use of FinTech in a country with poor Internet literacy and little awareness of cyber hygiene is in itself a threat to the integrity of the financial system.
Health records: Health Records are important, private documents, whose publication can lead to social embarrassment and worse. “An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy,” the Supreme Court said, qualifying its position, however, by saying that if such records are collected by the state preserving the anonymity of individuals, “it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it”.
Information control: Justice D Y Chandrachud mentioned three internationally accepted aspects of privacy: spatial control, decisional autonomy, informational control. The third facet is particularly relevant in today’s “era of ubiquitous dataveillance”, he said. “Informational privacy”, the judge said, “is a facet of the right to privacy”, adding that “the dangers to privacy in an age of information can originate not only from the state but from non-state actors as well”. Informational control, Justice Chandrachud said, “empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person”.
Juvenile justice: The Juvenile Justice Act was mentioned by the government to argue that India does not need a fundamental right to privacy. The Act guarantees that “every child shall have a right to protection of his privacy and confidentiality, by all means, and throughout the judicial process”. While the JJ Act makes the child’s privacy a statutory law right, last week’s privacy judgment reinforces the right of each child to have his details kept private even if he or she is charged for a crime.
KYC: ‘Know Your Customer’ is a mandatory requirement for the government — and extremely valuable for businesses such as insurance firms, banks, credit card companies, e-commerce firms, etc., who must know their customers as intimately as they can to tailor products for them. This is being done using unstructured data trails — cookies, metadata etc — on the Internet. Companies are sharing and trading individual profiles as commodities. The privacy judgment is likely to put a degree of check against unauthorized ‘commodity-fiction’ of private profiles taken off the Web
Online shopping: Buying online leaves electronic footprints that can be aggregated to reach conclusions on the nature of an individual’s food habits, language, health, hobbies, sexual preferences, friendships, ways of dressing, etc. Companies can dive into this reservoir of private data on online buying to target advertising to individuals. But following the privacy verdict, e-commerce companies will have to remain cautious about sharing data aimed at targeted advertising.
Profiling: Every person willingly shares some bit of information about herself to particular authorities, companies, or institutions. But when this information is no longer confined to silos, and an authority or company can create interlinks between the separate islands of information, they can assess the personality of the individual in question. European Union regulations in 2016 called it profiling, defining it as “automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular, to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences”.
The Supreme Court judgment has clearly established the vertical application of the right to privacy against the state. However, its horizontal application, against non-state actors, has been left open to case-by-case adjudication in the future.
Reproductive rights: The Supreme Court counts reproductive rights as inherent to the right to life and liberty. Like privacy, this right is not mentioned in the text of the Constitution but is a penumbral right — one derived from rights mentioned in the text. In 2009, the then Chief Justice of India K G Balakrishnan wrote, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21…” But more importantly, Balakrishnan noted that a woman’s reproductive choices also included the right to “abstain from procreating”. The Supreme Court used the jurisprudence on reproductive rights in India and the United States to draw parallels with privacy as a penumbral right.
Sexual identity: “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual,” said the SC. It said its 2013 judgment, which re-instated Section 377 IPC, effectively criminalizing homosexuality, struck a “discordant note” on the jurisprudence of privacy. LGBT rights, the court said, “inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination”.
Terror: The seamless structure and anonymity provided by the Internet have emerged as a new space for terrorists to exploit — in the form of indoctrination, cyber attacks on financial systems, etc. Justice Chandrachud underscored the “legitimate interest” of the state to monitor the Internet against terrorists, subject to just, fair and reasonable restrictions against encroachment into privacy.
Unauthorised taps: Though guidelines on phone taps are already in place, the privacy ruling has further reinforced protections against unauthorized surveillance.
Violence: Justice Chandrachud observed that “privacy must not be utilized as a cover to conceal and assert patriarchal mindsets”.
Western import: The judgment demolished the argument that privacy is an elitist construct imported from western countries. It “categorically rejected” the premise that the poor in the third world were more concerned with “economic well-being”, and “privacy is a privilege for the few”. Justice Chandrachud asserted that “every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects.”
X-Factor: While adjudicating on the limited question of privacy being a fundamental right, the Bench clearly also had in mind the likely evolution of ideas of privacy as technologies matured. Justice Chandrachud referred to “wearable devices” and the vast amount of data involuntarily generated by its users that could compromise privacy. Along with the evolution of new age technologies — artificial intelligence, virtual reality, augmented reality etc. — will come new challenges to the protection of privacy. The judgment indicates that it is alive to future developments as well.
Youth: The judgment underlined that the privacy of the socio-economically underprivileged was as important as that of anyone else — but given the extent of the adoption and reliance on new technologies by the younger generation, and in many cases their refusal to be straitjacketed within majoritarian frameworks, the issue holds crucial importance for this demographic as well. The ruling is also likely to be their bulwark against non-state actors as and when the privacy discourse gains critical mass among youth hooked to social media and e-commerce.
By the above supreme court judgment which included categorically the right to privacy as a fundamental right under the Art 21 right to life has guaranteed the primacy of individual privacy and ended the discrimination and secured the individual self in both physical and virtual world. This pivotal judgment which has the ability to mould the individual persona is very important in ensuring the survival of democracy with the plethora of importance it is not wrong to say by the constitutional experts and civil society as one of the important landmark judgment and can rightfully gained its space in ensuring the constitutional functioning and supreme court has again upheld its responsibility as the protector of constitution and guaranteer of F.R which ensures the all-round development of healthy individual ensures the equality in society successful and efficient functioning of Democracy.