Privacy as fundamental right: Minding our business
August 21, 2017, 11:44 PM IST Economic Times in ET Commentary | Edit Page, India | ETBy Smriti Parsheera
The Supreme Court’s upcoming verdict on whether we have a fundamental right to privacy will be one of the most momentous decisions of our times. It is, however, inopportune that this vital issue has arisen as an offshoot to the Aadhaar litigation.
Both sides are alive to the fact that the decision will take them a step closer or further from proving their stance in the main petition. This has undeniably coloured the arguments in court. The real implications of the nine-judge decision will, however, run much deeper than the immediate questions of Aadhaar.
The term ‘privacy’, while not expressly spelt out under the Constitution, forms the crux of what it means to live a dignified life in a liberal democracy. The concept of a secret ballot, for instance, finds its origin in the need for ‘political privacy’, our ability to vote anonymously, without the promise of reward or fear of persecution. Section 94 of the Representation of the People Act, 1951, codifies this right by providing that a person cannot be mandated to disclose for whom she has voted, not even before a court of law.
Then there’s ‘physical privacy’ that guards a person’s body and physical space from unwelcome intrusions. ‘Behavioural privacy’ gives us the freedom to keep private our religious practices, sexual orientation and associations. ‘Informational privacy’ deals with the expectation of privacy in the collection, storage and use of personally identifiable information. ‘Cognitive privacy’ calls for new thinking about the use of technologies that can decipher thoughts and brain activities.
Some of these rights are already covered by existing constitutional provisions, some have been protected under laws, while others are still waiting to be born. A legal right can, however, not be a substitute for a fundamental right. Legal rights can be conferred and withdrawn at will and their validity rests on conformity with the Constitution.
The declaration of privacy as a fundamental right will not imply that it will become an unassailable, paramount right, which can never be undone. The contours of privacy, and the limitations on its scope, will have to evolve through jurisprudence developed by the courts. Even until recently, when we believed privacy to be an integral part of the right to life and personal liberty under Article 21, the Supreme Court had pointed on several occasions that privacy is not an absolute right.
For instance, in Mr X vs Hospital Z ((1998) 8 SCC 296), while dealing with the right to confidentiality of an HIV patient, the court held that in case of a conflict between right to privacy and right to health of another, the latter prevails. In another case, ordering a person to undergo a medical examination was not regarded as being violative of the person’s right to privacy where the test was necessary to determine unsoundness of mind, a recognised ground for divorce. The person could still refuse the medical examination, allowing the court to draw an adverse inference (Sharda vs Dharmpal, AIR 2003 SC 3450).
Conferring privacy with the status of a fundamental right will achieve two key goals. One, it will offer a guaranteed constitutional framework to test against ingressions into the various dimensions of privacy. Two, it will provide courts with greater confidence when comparing the tradeoffs between privacy and other constitutional protections.
The separation of powers between the legislature and the judiciary demands that courts cannot question the wisdom of legislative actions. So, any law, no matter how odious it may appear, cannot be struck down by a court unless covered by certain specific grounds. These grounds, as stated most recently in the Aadhaar-PAN case (WP Civil No. 247 of 2017), are that the legislature did not have the competence to make the law; or the law is void for being in violation of any of the fundamental rights or any other constitutional provisions.
If privacy is not to be a fundamental right, what protection would we have against future transgressions of this right by various laws? Always having to derive this right from other provisions in the Constitution would dilute its efficacy. Relying on political processes to solve the issue would be too little, too late.
The key challenge, therefore, is not just about the privacy implications of the Aadhaar Act, or any other legislation, but the unforeseen laws and practices of the days to come. A few years ago, the Bombay High Court directed the UIDAI to share the biometric information of Aadhaar holders in Goa to aid the CBI in a rape investigation. The UIDAI challenged this before the court on grounds of privacy, which was accepted by the court.
The passage of the Aadhaar Act has now closed the door on such speculative searches, at least so far as biometric data is concerned. If the law were to be subsequently amended to allow biometric data to be shared for investigation and surveillance purposes, one would like to believe that the supporters of the Aadhaar architecture will join the detractors in opposing such a move. What we will need then is a fundamental right to privacy against which the actions of the legislature can be tested.
(From “How Benchmarking can Improve Cost Competitiveness in Steel”)
DISCLAIMER : Views expressed above are the author's own.
