My view on Supreme court’s ruling on right to privacy

Subba Iyer
Aug 26, 2017 · 3 min read

The Indian Constitution till now did not provide any specific Right to Privacy. Mr. Mukul Rohatgi -the ex AG specifically mentioned this in the Supreme Court in July 2015 following which the Supreme Court has referred this question to a Constitution Bench.

The AG based his view based on the Kharak Singh case v State of Uttar Pradesh (1963). In that case, the petitioner challenged the constitutionality of police regulations to conduct surveillance of persons with a criminal record under the ‘personal liberty’ clause of Article 21 of the Constitution. The majority of judges rejected the petitioner’s contention and stated: “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in part III.”

Subsequently there have been judgements by the Supreme Court, most notably by Justice Mathew granting the right to privacy in Govind v Madhya Pradesh. Most of the subsequent judgements of the Supreme Court has Article 21 of the Constitution as the source of the Right to Privacy in India. The right to privacy till now was just a residuary right under Article 21 and not a fundamental right. One could also infer that Article 21 (given the expanded meaning) was only a negative duty cast upon the State not to interfere with an individual’s privacy.

India still does not have a sui-generis statute that deals with all aspects of privacy across various domains. That said, there are various provisions (specific in nature) in statutes addressing privacy issues in banking, communications, personal privacy, telephony, media coverage etc. These provisions implicitly or explicitly attempt to protect privacy, albeit weakly, and inadequately and provides remedies to people whose privacy has been breached.

The current judgement has declared privacy to be a fundamental right.

The current judgement nullifies the earlier judgements (Kharak Singh, ADM Jabalpur etc.) and gives Right of Privacy as not just any right, but a fundamental right.

It is a landmark judgement and has several implications.

While the spotlight is on Aadhar, and justifiably so, there are other implications mostly for the government :

The Government — both at the Centre and the State has no policy or even a guideline on privacy or data protection. Mr. Ravishankar Prasad is just making hollow claims of the current government being seized of privacy issues. Even the Ministry of Electronics and Information Technology which happens to be the nodal agency for most Digital India project has no clear policy statement both in generally or in specific terms that can serve as guidelines. There are no privacy policies available for Passport Seva, National Rural Health Mission (NRHM) NHRM, eDistricts and several other initiatives. There are specific policies available for Aadhaar, eSign, DigiLocker and perhaps a few others.

The anomaly is striking, in that, While the government imposes reasonable strong strictures on the private sector as far as the data protection and privacy is concerned, it itself has not set standards or regulations for the data it collects, maintains, uses and discloses. It no longer can continue to do so.

The government will be forced to make significant changes in many of the statutes — Sec 377 will go, the Aadhaar act may be modified, a new law on data protection will come about and lot more changes in the IT Act 2008 shall ensue.

There will be a broader and larger conversation on data privacy and protection which should involve a much more diverse set of stakeholders keeping in mind that there is an increased deployment of the Internet of things and Big Data is becoming mainstream. Companies and government agencies are vulnerable to hacking attempts. India has been placed at #5 position globally in terms of data breach and exposed digital identities based on a recent report by Symantec

The judgement will form the cornerstone to the laws relating to data protection and the Aadhaar Act will be tested against the judgement.

All in all, this will end up ushering in a new paradigm.

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Subba Iyer

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Professor, Coach, Mentor and Commentator

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