Is “Privacy” a Fundamental Right?

The current debate on “Privacy” has pitted legal luminaries against each other; advocates representing states like Maharashtra, MP, Gujarat etc. have joined the centre in arguing against “privacy” being declared a fundamental right against legal eagles representing petitioners including states like Karnataka, Bengal, Punjab etc. on the other side.

Historical judgements on “Privacy”

“Privacy” is not a fundamental right ruled a 8 Judge Constitutional bench in the MP Sharma case (1954) & a 6 judge constitutional bench in the Kharak Singh case(1962); however, a seven-judge bench in Maneka Gandhi case (1978) approved of the dissenting judgment in the previous cases.

The 3 judge bench in the Gobind case (1975) ruled that certain intrusive police regulations were unconstitutional as privacy is a pre-condition for enjoyment of other fundamental rights & similar judgements followed; petitioners, therefore, urge the apex court not to reverse the progressive recognition given to the “Right to Privacy” for over 4 decades. Incidentally, over the years, the scope of fundamental rights has been expanded to include the right to a clean environment, sexual harassment (Visakha Guidelines) at al.  In the landmark Selvi case (2010), the judges specifically looked at Kharak Singh and MP Sharma cases & passed an order that a combined reading of rights meant that procedures like narco-analysis were wrong because they violated the right to privacy.

If privacy is not a fundamental right then the protection offered under article 8(1) (j) of the RTI act – the most cited act by the govt. to deny information - would be called into question. As per the act a public authority can deny personal information if by doing so it would cause an unwarranted invasion of privacy or if the disclosure does not serve public interest.

To break the constitutional logjam a larger 9 Judge bench of the SC bench was constituted under Chief Justice Khehar which is hearing the case since July 18^th.

Arguments Against “Privacy” as a Fundamental Right

Attorney General, KK Venugopal has argued for the govt. that Privacy is not a fundamental right - since it is not explicitly mentioned in the constitution to be countered by Soli Sorabjee who averred that despite the freedom of press not mentioned as a right in the Constitution, it has been deduced by the courts to exist under freedom of speech.

Privacy is a “common law right” offered Venugopal to be enforced by filing a civil law suit unlike a fundamental right which the court would enforce vide a writ which meant that privacy could be sacrificed at the altar of some vaguely defined public interest vide an amendment. After all the far reaching 11 Judge Bench judgement of the Bank Nationalization case (RC Cooper, 1970) was reversed vide the 25^th amendment to the Indian Constitution, in 1971, that curtailed the Right to property; the Kesavananda Bharti case (1973) thereafter instituted safeguards to protect the “Basic structure of the constitution”

The AG argued that “Informational privacy” cannot be a fundamental right only to be reminded that a State could seek information from a woman on how many children she has but cannot ask her how many abortions she has undergone. He also argued that Fundamental right is not absolute & reasonable restrictions apply; after all article 19(2) - the first constitutional amendment – was inserted to put curbs on the Right to freedom of speech & expression.

CA Sunderam representing the Maharashtra Govt. has argued that the term “privacy” is undefined & reminded that the Constitutional assembly deliberated on making the “Right to Privacy” as a standalone fundamental right & discarded it post debates.  He read the Gobind case judgement to highlight the words” if privacy is assumed as a fundamental right” to argue that “privacy” was   assumed. He averred that privacy might mean isolationism which itself is an antithesis to society only to be reminded that it is a citizens’ right to decide whether to live in solitude or co-habit with society.

Arguments for “Privacy” as a fundamental Right

Gopal Subramanyam cited the Maneka Gandhi case (1978, SC) - which held that the right to life and personal liberty had to be interpreted broadly through a combined reading with other fundamental rights under Articles 14 (equality), 19 (freedom) and 21 (life and liberty).  If a person is under surveillance, he will fail to speak up & that impacts the freedom of speech & expression under article 19(1) (a) of the constitution. Infringement of privacy is an affront to the dignity of the individual guaranteed under the Right to Life & Liberty (Article 21. Likewise, he contends that Article 25 of the Constitution guarantees Freedom of conscience and freedom to practice religion & availability of a necessary zone of privacy to arrive at positions is a pre-requisite.

Divan cites the unbroken line of decisions by the Supreme Court since 1975 as a reason for supporting privacy & argues that as a minimum privacy should be defined to include the right to be left alone, body integrity & information self- determination; compelling an individual to give up their information violates the right to privacy.

International Experiences

Europe generally is governed by the Data Protection Directive that requires member states to "implement technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access” and to establish judicial remedies for breaches. It also mandates the establishment of a public authority to monitor adherence to the directive.

The US is governed by the Privacy Act, 1974, to protect individuals from unauthorised use of their records by a federal agencies which are accountable for protecting & maintaining accuracy of records, &  also reveal the purpose for which are collecting information. The Snowden revelations indicate that Acts per se cannot protect privacy unless there are effective institutional checks & balances, supported by an active civil society & ethical corporates. While the revelations led to a Presidential commission & a private member’s bill to reduce the powers of the NSA & the Prism program, Magistrates have turned down more cases brought by law enforcement agencies under the Patriot Act. Google has sent millions of mails to users urging them to exert pressure on Congress for surveillance reform & Apple has refused to help the FBI hack the iPhone used by the San Bernardino terrorists.  When threatened with lawsuits, AT&T finally started releasing transparency reports.

 Conclusion

The government is promoting digitalisation, enacting policies permitting surveillance in cyberspace, telephones, email, personal messages etc. & implementing national programmes like Unique Identification Number under the grab of national security demands the enactment of stringent privacy laws.

If the bench decides that privacy is not a fundamental right, it will be impossible to escape the consequences for decades. Even if they pronounce it “fundamental” the validity of Aadhar shall be left to be decided by a smaller 5 Judge bench which can either declare the procedure established by law under Aadhar Act 2016 "not unreasonable" or delay pronouncement which would render its findings infructuous.

Either way, India is about to make history.