A Compromise Between the Right to Privacy And Surveillance

By | April 28, 2020
Right to Privacy And Right to Surveillance

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This article is written with the view to provide a brief understanding of the right to privacy – how is it enshrined within the ambit of Fundamental Rights guaranteed by the Constitution, whether there is a provision of waiving it. It also seeks to review the Aadhar Act, 2016, in light of the privacy judgement and the past provisions.

There is a timeline of cases that shows the development of the right to privacy being a mere right to becoming a fundamental right. However, the primary motive is to highlight the Aadhar Act which could be construed to violate an individual’s right to privacy and disclosures made by an individual under this act is voluntary or not, or whether is it being taken without the consent of an individual.

The article suggests certain measures for reform of Act but also by showing great potential, staying true to the goal of delivery of benefits of the society.

Introduction

Along with the Aadhar judgement, the Right to Privacy has taken rebirth, showing semblance to The Ghost of Christmas Past. The issue relating to Aadhar has not only brought back the debate whether Article 21 assures the right to privacy but has also stirred a strong aversion between right to privacy and surveillance.

Right to privacy defined in the Black’s Law Dictionary is,  “right to be not interrupted, right to stay alone, right to be away from the interference of the society when the public is not necessarily involved.” The right to privacy and the freedom of speech and expression have been gaining ground with the recent uproar caused due to the WhatsApp’s privacy policy, UIDAI’s unwarranted use of information and the fierce battle between the government and the surveillance systems.

Right to Privacy is not guaranteed by the Constitution, but it is read along and protected under the ambit of Article 21, courtesy, numerous judicial interpretations. The right to privacy cannot be called an absolute right and thus is bound by certain reasonable restrictions in the interest of public order, decency or morality, intrusion, defamation or incitement to an offence.[1]

The question to ponder over is whether the Aadhar scheme is reasonable enough a basis for the intrusion. Till date, the jurisprudence has concerned itself with the cases where information was extracted through coercion, without the consent of the person, such as phone tapping, as seen in the PUCL case.[2] While on the other hand, the Aadhar scheme claims to involve only the information that is voluntarily disclosed by an individual, but important details regarding the usage of date, the ends it is being used for and which are the agencies that can access the data, remain ambiguous. The issue in hand is that whether is such cases, consent will be taken by the individual or not.[3]

It is not anywhere incorporated in the Aadhar Act when disclosures are made by the Unique Identification Authority of India (“UIDAI”). The consent is compromised, wherein the US Privacy Act of 1974 and the UK’s Data Protection Act of 1998 emphasise on getting the consent of the individual.

Legal Position – Right To Privacy

Even though the Right to Privacy is not stated in the Constitution, but the Judiciary ha been instrumental on creating a nexus between the right to privacy and Article 21.

  • 1950 – 2000

The Supreme Court pronounced in the case of Kharak Singh v. State of UP[4] that even if the right to privacy is not declared as a fundamental right, it is a crucial tool for personal liberty

Further, the disputed legal position was upheld in Gobind v. State of Madhya Pradesh[5], held that in any event, the right to property will necessarily have to grow through a process of case-by-case development.

  • 2000 – 2016

In Sharda v. Dharampal[6], the reasonable restrictions regarding the right to privacy were discussed. It has been extracted from the detailed interpretation of article 21 even after not explicitly being written in the Constitution.

Finally in the Aadhar card case i.e. Justice K.K. Puttaswamy & Anr. V. Union of India[7], the importance of privacy as an autonomous entitlement was recognized, not by the concept of an amendment, but by determining the scope and nature to which the freedoms are available to an individual by the Constitution of India, through judicial interpretation.

Justice Chandrachud established that every individual has the right to protect his privacy and that the right to privacy comes under the ambit of right to life and liberty enshrined in Article 21. Justice Bobde further elaborated that the right to privacy finds its home in Article 21 at the very core of life and personal liberty itself. Justice Bobde added that for a person to experience happiness and to perform at the highest level, an individual must ensure that his right to privacy is kept intact.

Importantly, it is to be observed that the Apex Court’s decision in Puttaswamy overruled the orders of the M.P. Sharma v. Satish Chandra (1954)[8] case and the Kharak Singh v. State of Uttar Pradesh (1962), both considered to be landmark judgements which held that the Indian Constitution does not protect the right to privacy.

  • 2017

On 24th August 2017, the Supreme Court, while examining the constitutional culture of India, proclaimed privacy as a postulate of human dignity. It was argued that privacy is the ultimate expression of an individual when it comes to analysing the spectrum of protected freedoms.

While discussing the nature of privacy, the Court held even though an individual has his own zone of privacy, its extent is not only based on the subjective consideration, but also on the objective principle that defines a reasonable expectation. All said and done, a policy regarding privacy has to be made while striking a balance between the concern of the State and the interest of an individual.

Right To Privacy And Its Recent Controversies

There have been numerous cases in various courts in India which broaden the scope of the right to privacy.

  • The Aadhar Case: Since its inception, the Aadhar scheme has been under the spotlight. In the case of Justice Puttaswamy v. Union of India, the Supreme Court lightened the controversy for a while holding that the information extracted by the authorities will have a very specific and restricted use i.e. for the Public Distribution System Scheme and by the permission of the court, for criminal investigation. Yet, after a detailed judgement from the Apex Court, the issue of Aadhar Card has reared its head again. It is considered to be an undemocratic means to take away the right to privacy. Aadhar scheme is being turned into the world’s biggest surveillance system by retrieving biometric and linking card services. The government makes it mandatory for numerous schemes such as availing minority students’ scholarship, even though Justice Dattu held that Aadhar card is to be a voluntary service, not a mandatory one. Aadhar is being used as a deliberate tool by the government to secure the largest database of a population in the world without their apt knowledge and consent.
  • The Naz Foundation Case: This case concerns itself with Section 377 of the Indian Penal Code which talks about the nature of homosexual sex between adults. In the case of Naz Foundation v. NCT of Delhi[9], the Delhi High Court in 2009 held that “Privacy enables a person to decide upon their human relations without the interference from the outside world or from the State. An autonomous individual can grow in self-esteem, get into relationships of their own choice without any hindrance from the community and fulfil goals that he/she set for himself/herself. Under Article 21, the right to live with dignity and the right to privacy, both concern themselves equally.
  • WhatsApp Controversy: A PIL was filed by Shreya Sethi and Karmanya Sareen with respect to the change in the privacy policy of WhatsApp. WhatsApp underwent a change in their privacy policy without informing users which amounts to unfair practice and is hit by the principle of estoppel. Facebook has acquired WhatsApp, and right after that WhatsApp started sharing the information of the users with Facebook for an enhanced advertisement and product sharing service.

A Holistic Privacy Policy

The concept of democracies thrives on striking a balance between the power of the government and the autonomy of the citizens. More autonomous the citizens, stronger the democracy. But if the government becomes really powerful, then it starts defeating the purpose of democracy and starts heading on the footsteps of autocracy. Thus, a comprehensive privacy policy is required to increase personal autonomy.

Firstly, citizens should be protected from search, surveillance and seizure. In the case of Kharak Singh, the issue of abuse of surveillance was discussed when police officers overstepped their powers by harassing the plaintiff by searching the house, dragging him to the police station, etc. Therefore, such arbitrary exercises should be condemned and the citizens should be protected from such abuse of power.

Secondly, the citizen should have the privacy of the body. A person has an absolute and unequivocal right over his body and he has the choice to do whatever he thinks is correct for his body. Government intervention should not be there as it violates the basic principle of right over the body as in the case of Medical Termination of Pregnancy Act, in which women cannot undergo an abortion by her choice, but she has to comply by certain conditions given in the act to undergo an abortion.

And Lastly, the privacy of records and communication. In the case of People’s Union for Civil Liberties v. Union of India[10], the issue was regarding the tapping of phones which leads to the breach of privacy as conversations are intimate and confidential in nature.

Conclusion

After numerous battles and judgments, Right to Privacy has finally been acknowledged. However, a clear picture is yet to emerge regarding its scope and extent. This right flows from the Constitution by the virtue of India being a democratic republic. Right to Privacy forms a very crucial part of Article 21. The point of doubt arises when certain moves by the government in terms of legislation and rules end up making the motive of this right perverse.

Personal liberty is dependent on the right to privacy. Also if there is no privacy, then isn’t the concept of life mimicking that of animal existence. Thus while pronouncing the right as a fundamental right, the Apex Court held that pursuit of happiness is dependent on autonomy and dignity.

Thus, an interface needs to established between the state action and a person’s autonomy in terms of what and how he wants to do things. A societal intervention in this aspect is not only disrespectful to that individual but also a violation of a fundamental right, making this safety of this right more than necessary.


[1] INDIA CONST. Article 19(2)

[2] PUCL v. Union of India, AIR 1997 SC 568.

[3] Amba Kak and Swati Malik, Privacy and the National Identification Authority of India Bill: Leaving Much to the Imagination, 3 NUJS Law Review, p. 499. (hereinafter Amba Kak)

[4] AIR 1963 SC 1295.

[5] AIR 1975 SC 1378.

[6] AIR 2003 SC 3450.

[7] WRIT PETITION (CIVIL) NO 494 OF 2012

[8] AIR 1954 SC 300.

[9] 160 Delhi Law Times 277

[10] (1997) 1 SCC 30.


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