Right to Privacy: Issues and Challenges (Part I)

-

RIGHT TO PRIVACY: ISSUES AND CHALLENGES (PART I)

Aditya Sethi, 4th Year, BA.LLB (Hons.), School of Law, Christ University

Editorial Note: In this blog post, the author seeks to outline the various facets which require consideration in relation to the broader question of application of the right to privacy in the Indian context.

There is a sacred realm of privacy for every man and woman where he makes his choices and decisions – a realm of his own essential rights and liberties into which, the law, generally speaking, must not intrude.
                                                                        Geoffrey Fisher
Introduction
The concept of privacy postulates the reservation of a private space for the individual which enables to assert and control the human element which is inseparable from the personality of the individual. The zone of privacy enables the realization of the full value of life and liberty intertwined with the entitlement of human dignity which is constitutionally protected. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.

A Nine Judge Bench of the Hon’ble Supreme Court in Justice (Retd.) K.S Puttaswamy v. Union of India [1](Puttaswamy) unanimously decided that right to privacy is a fundamental right under Part III of the Constitution. The Court held that privacy is a constitutionally protected right which emerges primarily from the guarantee of life and liberty inhering in each individual as an intrinsic and inseparable part of the human element which dwells within the human personality. The Court observed that privacy includes in its core the preservation of personal intimacies and the sanctity of family, life, marriage, procreation, home and sexual orientation. It also connotes the right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life which is an essential facet to the dignity of a human being. The Court observed that the Constitution must evolve with time to meet the unprecedented challenges thrown up in a democratic set up governed by the rule of law. Technological changes and advancements may lead to concerns for which an effective mechanism with regard to data protection ought to be established.

The Court held that like other fundamental rights under Part III, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. The invasion of privacy in the context of Article 21 must be justified on the basis of a law which stipulates the procedure which is just, fair and reasonable.

This judgment primarily dealing with nuances of the Aadhar law has given impetus to multiple challenges affecting the rights of the citizens that have brought multifold changes for the Indian polity. The judgment has represented decisive development in jurisprudence which has opened the doors for debate and deliberations in expanding the contours of privacy rights in India.  This post seeks to analyze the underlining issues, perspectives, challenges of the various aspects concerning the right to privacy.

Issues and Challenges
Choice of Food and Dietary Preferences
The Court in Puttaswamy observed that ‘an individual would not like to be told by the State as to what to eat, how to dress or whom they should be politically associated with either in their personal, social or political life.’[2] This decision is bound to have a significant bearing on the policy decisions relating to the prohibition on the slaughter of cows and draught cattle.

The issue of beef ban first arose in Mohd. Hanif Quareshi,[3] where the court thoughpermitted trade and slaughter of old and unproductive cattle, it upheld the ban on the slaughter of useful cattle. This position was overturned by a Division Bench in Hinsa Virodhak[4], where the court recognized the choice of food of an individual as a personal affair under Article 21, however it ordered for the closure of the municipal slaughter houses in Ahmedabad for a period of nine days during the Jain festival of Paryushan. The Court observed that ‘the interest of the citizen or a section of a community, howsoever important is secondary to the interest of the country or community as a whole.’ This observation is significantly opposed to the scheme of the Constitution of India.Article 46 of the Constitution mandates the State to take measures for the protection of the weaker sections of the society. The deprivation of a cheap source of protein to the weaker sections of the society by imposing ban on the consumption of beef stands against theconstitutional philosophy. Threatening the lives of citizens in the name of cow protection cannot be justified by the state to be within the scheme of the Constitution.
           
Justice Chandrachud in the privacy judgment held that the guarantee of constitutional rights does not only depend upon views prescribed by the majority population. The insular minorities face a grave danger of discrimination for their views and opinions.[5]This decision ought to be reviewed on the touchstone of the three-fold requirement laid down in Puttaswamyto ascertain if such a proposition stands the test of constitutionally justifiable restriction on the right to privacy.[6]

In light of the momentous privacy verdict, the Supreme Court is now considering an appeal in Shaikh Zahid Mukhtar v. State of Maharashtra[7], in which the Bombay High Court had struck down Section 5D of the Maharashtra Animal Preservation Act, 1976 which criminalized the possession of beef  regardless of the source fromwhere the meat had been procured. The Court ruled that law places an unreasonable restriction on a person’s privacy thereby impinging on their autonomy in deciding how they wish to lead their lives. Justice Oka observed that ‘as far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to their health. A citizen has a right to lead a meaningful life within the four corners of his house as well outside his house.’

Justice Chandrachud in Puttaswamy reflected that ‘elements of privacy also arise in varying contexts from the other factors of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III’[8] In this backdrop, it is important to have a conjoint reading of Article 21 with Articles 19(1) (g) and 25 of the Constitution. The statutes banning the consumption of beef have been challenged by butchers as being violative of their right to trade, for the right to choice of food is meaningless unless it is available for one to purchase.[9]Significantly, the Prevention of Cruelty to Animals Act, 1960 ‘excludes’ killing of animals for the purposes of food from the definition of ‘cruelty.’[10] The argument to have compassion for all ‘living creatures’ under Article 51 A (g) as a fundamental duty has also been counter argued. To this effect, it is equally important to take into account the rights of people who lose their livelihood on account of stricter cattle protection laws.[11]

The argument of protecting the environment under Article 48 A has also been considered. Farmers have been of the opinion that maintenance of cattle becomes difficult after they become old. They tend to consume more fodder than it is sustainable for the environment.[12]In Mohd. Hanif Quareshi,[13] it was observed that ‘preservation of useful cattle by establishment of gosadan is not a practical proposition, as they are like concentration camps where cattle are left to die a slow death.’

Certain states haveimposed absolutely inappropriate and arbitrary punishments for protection of cow slaughter ranging from rigorous imprisonment upto 10 years and /or fine upto Rs. 10 Lakhs. This arrangement is in utter disregard with the principle that ‘no sentence should ever appear to be vindictive [since] an excessive sentence defeats its own object and tends to further undermine respect for the law.’[14] An argument challenging the violation of the religious rights of a Hindu individual under Article 25 of the Constitution in so far asnot imposing a ban on cow slaughter has been historically disproved.[15]

In backdrop of the historic decision in Puttaswamy, it is now well established that rule of law demands respect for individual beliefs and preferences and the assertion of individual autonomy must first be reflected in the right of a person to have freedom to choose what he intends to eat.

Health and Privacy

The Puttaswamy judgment has reflected the significant contours between health and privacy. Justice Chelameswar observed that refusal to recognize a life prolonging medical treatment falls within the ‘zone of privacy’.[16] Justice Chandrachud augmented the need for preservation of medical information and the implications of reproductive choices on health as the core tenets of privacy.[17] Justice Nariman shed light on the three aspects of privacy impacting health; privacy relatable to physical body; informational privacy and individual autonomy over personal choices.[18]

The Court made critical observations with respect to unauthorized disclosure of medical information by hospital by contemplating on the decision ofMr. X v. Hospital Z[19], where it justified disclosure of medical information to create a balance between privacy, equality and justice.[20] The Court ruled that right to privacy formed an integral part of right to life, however the right could be restricted for the protection of health. The extent of disclosure of information would have to be tested upon the three fold requirement of legality, need and proportionality.[21]

Some of the legislations though enacted in public intereststand a risk of unwarranted disclosure of privacy and health related concerns. There are no uniform standards to evaluate issues concerning confidentiality. Different legislations apply different standards and therefore warrant a comprehensive review to align with the standards laid down in the privacy judgment.

i. Protection of Children from Sexual Offences Act, 2012(POCSO): Section 19 of the Act mandates compulsory reporting of an offence by persons including medical practitioners to the Special Juvenile Police Unit. The law must cater to additional safeguards to ensure that the confidential information of the patient remains intact.[22]
ii. Information Technology Act, 2000: The Act and Rules framed thereunder will apply to confidential prescription information obtained by e-pharmacies, whereas information collected during clinical trials would be governed by the Guidelines for Clinical Trials on Pharmaceutical Products in India.[23]           
iii. The Transportation of Human Organs and Tissues Rules, 2014:  Rule 28(F) provides that donors intending to be registered must use unique donor identification number for each donor, without a specific reference as to who may access these records.
Rule 32 (ii) provides that requisite measures should be undertaken to ensure security of thr collected information. The Act does not entail any specific factors to determine the nature of measures that need to be taken into account.
iv. Electronic Health Standards: The existing Electronic Health Record standards prescribe their own definition data privacy and security. These standards do not apply to the ‘wider implementation scenarios of an administrative, legal or regulatory nature.’[24]
v. Compulsory Use of Aadhar: The mandatory submission of Aadhar for treatment of Aids at Antiretroviral Therapy centres (ARTs) or under the Revised National Tuberculosis Control Programme has made patients avoid treatment in government hospitals and ARTs for fear of disclosure of their confidential information. [25]

It is imperative that the Ministry of Health and Family Welfare alongwith the expert committee on data protection take adequate steps to suggest and implement uniform principles to govern the collection, storage and disclosure of relevant health information. If the existing framework is to continue, then there would be serious implications on legislations like the Medical Termination of Pregnancy Act, 1971 and the Surrogacy (Regulation) Bill, 2016 which include aspects concerning bodily integrity and decisional autonomy.[26] The HIV/AIDS Act, 2017 must be seen as a model legislation to demonstrate specific balancing of rights to achieve the legitimate interests encompassing both the administration of justice and protection of health of individuals. 

 Read Part II here.


[1]K.S Puttaswamy v. Union of India, (2017) 10 SCC 1.
[2] K.S Puttaswamy &Anr., Supra Note 1 at  paragraph 231.
[3]Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 731. 
[4]HinsaVirodhak Sangh v. Mirzapur Moti Kuresh Jamat, AIR 2008 SC 1892.
[5] K.S Puttaswamy v. Union of India, ¶126.
[6] K.S Puttaswamy v. Union of India, ¶180.
[7]Shaikh ZahidMukhtar v. State of Maharashtra, Writ Petition Civil No, 5731 of 2015.
[8] K.S Puttaswamy v. Union of India, ¶188 (c).
[9]Faizan Mustafa & Vivek Mukherjee, ‘Holy Cow, Privacy and Unholy Laws,’ Economic and Political Weekly, Vol. 52,  Issue 51.
[10]Section 11(3) (e), Prevention of Cruelty to Animals Act, 1960.
[11] ‘Beef Ban Does Not Violate Choice of Food of People: Maharashtra to HC’, Hindustan Times, 20 April 2015, available at: https://www.hindustantimes.com/mumbai/beef-ban-does-not-violate-choice-of-food-of-people-maharashtra-to-hc/story-KCWj0mrgdOyR0NsLpmj4fN.html.
[13]Mohd.Hanif Quareshi, Supra Note 6. 
[14]Dulla and Ors. v. The State, AIR 1958 All.198.
[15]DN Jha, The Myth of Holy Cow, Navayana Publishing (2009).
[16] K.S Puttaswamy v. Union of India, ¶229.
[17] K.S Puttaswamy v. Union of India, ¶71.
[18] K.S Puttaswamy v. Union of India, ¶364.
[19] Mr. X v. Hospital Z , (1998) 8 SCC 1296.
[20] K.S Puttaswamy v. Union of India, ¶57.
[21] K.S Puttaswamy v. Union of India, ¶180.
[22]Aparna Chandra, Panel Discussion on Privacy and Reproductive Rights, Vidhi Centre for Legal Policy, India International Centre, New Delhi, 13 October 2017.
[23] Drug Consultative Committee, ‘Report of Subcommittee Constituted by the Drug Consultative Commiitee to Examine the Issue of Regulating the Sale of Drugs over Internet under the Drugs and Cosmetics Rules, 1945’, 30 September, 2016, available at : http://www.cdsco.nic.in/writereaddata/Sub-Committee%20Report%20on%20e-pharmacy.pdf.
[24] National Health Portal, Electronic Health Records Standards; Notification of Electronic Health Record (EHR) Standards - 2016 for India, 30 December 2016, available at: https://www.nhp.gov.in/NHPfiles/EHR-Standards-2016-MoHFW.pdf.
[25] Shruti Tomar, Linking Benefits for AIDS Patients to Aadhar Triggers Privacy Concerns, Hindustan Times, 27 March 2017, available at: https://www.hindustantimes.com/bhopal/linking-benefits-for-aids-patients-to-aadhaar-triggers-privacy-concerns/story-iR6HB8RmqPDaNwkX2Oj5EJ.html.
[26]Jyoti Pandey, ‘Data Protection as a Social Value,’ Economic and Political Weekly, Vol. 52, Issue 51.

Comments

Post a Comment

Popular posts from this blog

The Social Security Code: A Boon or a Bane for Gig Workers?

-
THE SOCIAL SECURITY CODE: A BOON OR A BANE FOR GIG WORKERS?  Simran Upadhyaya , Mitali Jain; 2nd and 1st Year, B.A. LL.B(Hons.), West Bengal National University of Juridical Sciences Kolkata   I.                Introduction With the emergence of enterprises such as Swiggy and Uber, there has been a colossal increase in 'gig workers' employment. [1] Presently, gig workers constitute 56% of all new employment. [2] It is predicted that the gig economy will grow up to $455 billion by the year 2023, which comes down to an annual growth rate of around 17%. [3] The draft Code on Social Security, released by the Ministry of Labour and Employment, defines the gig worker as " a person who performs work or participates in a work arrangement and earns from such activities outside of traditional employer-employee relationships". [4] Thus, gig workers lie outside of the conventional employer-employee relationships and, consequently, remain devoid of the traditional employee b
Read more

A Few Subjects that Indian Law Universities should teach at the Undergraduate level but don’t

-
A FEW SUBJECTS THAT INDIAN LAW UNIVERSITIES SHOULD TEACH AT THE UNDERGRADUATE LEVEL BUT DON’T Suman Kumari, 1st Year, Indore Institute of Law, Madhya Pradesh Editorial Note: In this blog, the author speaks about some of the subjects which need to be taught in Indian law universities in light of the demands of a professional career in law. Every time we think of law as a career, we tend to think of law universities, which are essentially single discipline universities which offer degrees at various levels of study to aspirants. The curriculum in such universities includes all the law subjects that are deemed to be necessary to become a lawyer, ranging from Contract law to Torts. Even though at a preliminary level, it may appear that the subjects taught at the undergraduate level are adequate for legal training, it is argued that there are some key subjects which are still missing from the list of courses, which can potentially affect the formation of responsible agents
Read more

Right to Privacy: Issues and Challenges (Part II)

-
RIGHT TO PRIVACY: ISSUES AND CHALLENGES (PART II) Aditya Sethi, 4th Year, BA.LLB (Hons.), School of Law, Christ University Editorial Note: In continuation of the previous blog post, the author continues his observations relating to the various issues and challenges which exist in relation to the operationalisation of   the right to privacy. The earlier part is available  here. Data Protection And Interaction with Right to Privacy In light of the Puttaswamy decision, safeguarding personal information collected by the State and private agencies for governance becomes the foremost consideration. Justice Chandrachud observed that‘ informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person . ’ [1] Justice Nariman reflected that the ‘ idea of privacy reflects to a person’s mind ’ and ‘ any unauthorized dissemination of material that is present to him’ may cause infringement of this right. ’
Read more