Privacy as a Right: Hurdles and Opportunities (Part I)
PRIVACY AS A RIGHT: HURDLES AND OPPORTUNITIES (PART I)
Tamish
Kumar, 1st Year, BBA.LLB (Hons.), Symbiosis Law School, Pune
Editorial
Note: The recently recognised right to privacy has been the subject of much
celebration. Yet, its recognition in the current legal system brings with it
some hurdles as well as opportunities, as discussed by the author in this blog.
“There
are cases where a decision one way or the other will count for the future, will
advance or retard sometimes much, sometimes little, the development of the law
in a proper direction. It is in these types of cases where the judge is to leap
into the heart of legal darkness, where the lamps of precedent and common law
principles flicker and fade, that the judge gets an opportunity to mould the
law and to give it its shape and direction. This is what we have been trying to
do in India.”
- Prafullachandra Natwarlal Bhagwati, 17th Chief
Justice of India
Former CJI P.N. Bhagwati’s words took shape inthe
form of a judgement pronounced in August 2017 incorporating the Hon’ble Supreme
Court’s activist stance in rescue of the citizens’ right to privacy. Debatable
as the right may appear in practice, the apex court of the nation, in essence,
sees privacy as a right implied within the definition of Article 21
andprovisions of Part III of the Constitution.Humans have the psychological
build to conceal, seek autonomy and keep specific matters to themselves, away
from all form of external intrusion to such matters. Black’s Law Dictionary
defines right of privacy as ‘right to be left alone, the right of a person to
be free from unwarranted publicity’. It defines one’s right to privacy as being
directly concerned with one's own peace of mind. It is imperative to request
oneself, today more so, if the right to freedom from unnecessary intrusion, despite
the Supreme Court’s ruling, is a right in actuality; and if not, what
challenges are to be tackled to safeguard it.
History of Privacy as a Right
Before
the recent hubbub around data breach perils surrounding Aadhar, the concept of
privacy was acknowledged in ancient Indian texts. One such mention is within
the ancient Indian text ‘Hitopadesha’:
आयुवित्तां
गृहच्छिद्र मन्त्तमौषध मैथुने।
दानंमानापमानौ
च नंव गोप्यानि कारयेत।[1]
Apropos of the Constitution of
India, the right per se finds no explicit mention of itself within its 395
articles, hence courts often found the decision of settling of privacy as a
fundamental right in toto to be a distressing subject.However, such a right has
been culled by the Supreme
Court from Art. 21 and several
other provisions of the Constitution read with the Directive Principles of
State Policy.[2]
A
question concerning right to privacy was raised for the first time in Kharak Singh.[3]
Much along the lines of the arguments framed today, the question to be decided
before the court was whether right to privacy could have been implied from the
Fundamental Rights enshrined in Part III of the Constitution, viz. Art(s).
19(1)(d), 19(1)(e) and 21. The majority decided to look at the articles in
their literal sense and said that our Constitution did not confer ‘any like
constitutional guarantee’, while Subba Rao, J., was of the opinion that right
to privacy would be implied under Art. 21.
In
T. Sareetha v. T Venkata Subbaiah,[4]a
straight question regarding the validity of privacy as a fundamental right was
posed before the Hon’ble High Court of Andhra Pradesh. The Court’s decision was
in the affirmative. Several other judgements that followed also protected right
to privacy including PUCL v. UOI(1996),[5]
where the Supreme Court of India affirmed that telephone-tapping encroached
upon the fundamental right to privacy. In the landmark judgement of K.S. Puttaswamy,[6]
a nine-judge Constitution bench headed by former CJI JS Khehar declared right
to privacy as a fundamental right in India. This judgement was also used in Navtej Singh Johar,[7]
where the constitutionality of Article 377 was questioned and the Court
unanimously declared the law unconstitutional ‘in so far as it criminalises consensual sexual conduct
between adults of the same sex.’
Considerations regarding the
Right to Privacy
Regardless
of all the judgements and support, right to privacy still fails to see itself
prosper to its fullest as a result of multifarious impediments in its route. It
is persistently in tussle with provisions, laws, and in the present digital
age, a constant concern of security breach. The scope of right to privacy must
be defined; while it remains true that the scope and extent of privacy rights
could differ from one case to another, a yardstick for protection of such
rights would help courts interpret and apply laws concerning them better.
I. Reproductive Autonomy
Autonomy
makes reference to an individual’s ability to make decisions or choices
regarding his/her life as per his/her beliefs and without any interference.
Reproductive autonomy, parallelly, refers to the ability of an individual to
make decisions regarding reproduction as per one’s beliefs, values and desires.
An encroachment upon this right through statute or otherwise would guillotine
the individual’s reproductive autonomy and subsequently his/her right to
privacy. In R. Rajagopal,[8]
the Supreme Court said, ‘A citizen has a right to safeguard the privacy of his
own, his family, marriage, procreation, child-rearing and education among other
matters.’
Attempts
to curb reproductive autonomy in India have been observed in the past few
years, especially through the passing of Surrogacy (Regulation) Bill, 2016, by
the Lok Sabha in 2018,which seeks impose a blanket ban on commercial surrogacy.
The Bill, which sprouted from previous cases like Baby Manji[9]
and Jan Balaz[10],
leaves space only for altruistic surrogacy where the surrogate mother must be a
close relative of the heterosexual couple, must be married and between the age
of 25-35 having at least one child of her own, and such a woman shall not
assist in any way for surrogacy more than once in her lifetime.[11]
Furthermore, surrogacies would no longer attract money transactions under the
Bill.
On
the one hand, the Bill was introduced purposefully to provide relief to poor
women who were being exploited at the hands of foreign nationals. On the other
hand, a strong question is raised as to whether the superimposition of the
government’s views has any legal backing whatsoever. Several legal experts have
expressed that the Bill would not stand the test of constitutional rights and
that it clashes with and infringes upon an individual’s right to privacy. Soli
Sorabjee, former Attorney-General of India, tabled his reservations about the
Bill, calling it to be in ‘violation of basic rights of privacy and fundamental
rights of reproductive autonomy.’[12]
The
Bill attacks a woman’s right to privacy in a way that it impedes her right to
exercise her reproductive right with dignity. Merely because exploitation
attracts opprobrium, does not necessarily make surrogacy in its commercial form
opprobrious in every respect. The Parliament must mediate upon the fact that
there is a distinction between reasonably restricting an exploitative
phenomenon, the summum bonum in the present scenario, and absolutely
restricting a rightwhich not only has implicit constitutional sanction, but has
also gained national and international sanction through precedents and
conventions.
II. Data Breach and
Questionable Level of Cybersecurity
India
has loose cybersecurity laws which make sensitive data of millions of people
susceptible to data breach. Lack of judicial development, dormant state of
authorities intended to regulate, enforce, and enhance cybersecurity calls for
urgent attention to bring about change in this respect.[13] A
development, however, was made back in 2013 in the form of National
Cybersecurity Policy. The policy framework aimed to monitor and protect
information and strengthen defences from cyber-attacks.[14] Albeit
an enthusiastic venture, there seem to be a number of issues with the
government’s Draft Data Protection Bill as well. One of the requirements under
the Bill is for companieswho receive user data to store at least one serving
copy of the same personal data in India.[15] Taking
into account the challenges India faces when it comes to data protection, there
would be a towering threat to people’s privacy if this ever happens. It appears
that much more effort and attention to detail is to be given before making a
Bill for data protection in India.
In the present digital age, more
and more people have online presence; and the more online presence people have,
the more data they place in the hands of self-confessed safe social media
platforms. Several reports claim that India reports more data breach incidents
that the global average, with one report claiming that about 52 per cent
Indians reported data breach in 2017 compared to the global average of 36 per
cent.[16]
High percentage of data breach coupled with lack of codified laws to protect
the same calls for a dire need for the lawmakers to address this issue in a
much more systematic manner. Despite the fact that the government has made an
appreciable move towards data protection in such a short period of time,
stringent laws thatencompass all forms of data breach need to be formed first
for secure storage ofdata with the State as well as private entities.
A. The Aadhar row
With the apparent increase in
control of State over individuals’ data, it has become more important than ever
to have better data protection policies and laws.The Supreme Court, sadly
enough, changed its stance regarding Aadhar-PAN linking a year after the
privacy judgement was promulgated. While the data collected for Aadhar viz.
fingerprints, iris scans, residential address, phone numbers, etc. is used for
providing subsidy and schemes, a constant threat of data breach lingering over
the same has resulted in questions being asked about the level of protection
given to the data that is collected. In addition, the mandatory linking of PAN
with Aadhar for filing income tax return, and where Aadhar has already been
linked with mobile numbers and bank accounts, calls for even stricter laws.
Several such cases and reports of
breach have surfaced where security of personal data was compromised, for e.g.,
where reports surfaced that certain websites hosted and openly revealed Aadhar
information on Google.[17]Another
incident that happened in the past included slip-ups in the Aadhar enrolment
procedure where Aadhar cards were issued with wrong photographs.[18]
Such incidents, inter alia, cast doubt as to how safe one’s data is in the
custody of the government and if the government should continue to procure such
data amidst the present absence of enough remedies and protections available to
the public in case of a data breach.
Read Part II here.
Read Part II here.
[1]Hitopadesha 1:123:
‘Worship, sex and family matters, etc. were to be protected from disclosure.’
Also see, Justice Palok Basu, Law Relating to Protection of Human Rights
under the Indian Constitution and Allied Laws, Ed. 1 (2002), p. 503.
[2]Vol. 1, M.P. Jain, Indian
Constitutional Law, Ed. 5 (2003), p. 1325.
[4]AIR 1983 AP 356.
[11] Dr.Bins Sebastian, Is Banning Commercial Surrogacythe Right Thing to Do,https://www.livelaw.in/columns/is-banning-commercial-surrogacy-the-right-thing-to-do-141862
[12]‘Surrogacy Bill
violative of privacy rights’,https://www.thehindu.com/news/national/%E2%80%98Surrogacy-Bill-violative-of-privacy-rights%E2%80%99/article16437493.ece
[13] Aditi Subramaniam & Sanuj Das, The Privacy, Data Protection and Cybersecurity Law Review - Edition 4, The Law Reviews, <https://thelawreviews.co.uk/edition/the-privacy-data-protection-and-cybersecurity-law-review-edition-4/1151286/india>
[14] Sanjiv Tomar, National Cyber Security Policy 2013: An Assessment, Institute for Defence Studies and Analyses, <https://idsa.in/idsacomments/NationalCyberSecurityPolicy2013_stomar_260813>
[15]Chinmayi
Arun, Three Problems with India’s Draft Data Protection Bill, Council on
Foreign Relations, https://www.cfr.org/blog/three-problems-indias-draft-data-protection-bill
[16]Data breach incidents in India higher than global
average, The Economic Times, //economictimes.indiatimes.com/articleshow/65107118.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
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