RIGHT TO PRIVACY

RIGHT TO PRIVACY

Right to Privacy refers to respecting and ensuring the privacy of the individual. It is not explicitly mentioned in the Constitution. Privacy is a human right enjoyed by every human being by virtue of his or her existence. Privacy also extends to bodily integrity, personal autonomy, compelled speech, and freedom to dissent or move or think.

Constitutional Article

• Article 21: The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

Laws covering surveillance in India

• Telegraph Act: Government can intercept calls only in certain situations — the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order, or for preventing incitement to the commission of an offence.
• IT Act, 2000: Under the IT Act, all electronic transmission of data can be intercepted. Section 69 of the IT Act makes it broader — interception, monitoring and decryption of digital information “for the investigation of an offence”.

Who can tap phones?

• In the states: state police have the powers to tap phones.
• At the Centre: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner.
• Tapping by any other agency would be considered illegal.

Recent Cases

1. WhatsApp New Policy: The Government of India has asked WhatsApp to withdraw the proposed changes in its privacy policy, saying that the proposed changes raised “grave concerns” over the implications of the choice and the autonomy of Indian citizens.
2. MHA authorization to Central agencies: MHA, in Dec 2018, authorised 10 Central agencies to “intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer in the country”.
   • This notification is presently under challenge before the Supreme Court.
3. Social Media Monitoring Hub: In July 2018, the Ministry of IB had floated a tender for ‘Social Media Monitoring Hub’, a technical solution to snoop on all social media communications, including email.
   • The government had to withdraw the project following the top court’s stinging rebuke.
4. Project Insight: The Income-Tax department has its “Project Insight” which also has similar mass surveillance ends.

Important Judgements

• Kharak Singh vs. State of UP: Extending the dimension of ‘personal liberty,’ the apex court for the first time declared the right to privacy to fall under the purview of Article 21.
• Govind vs. State of MP: The top court held that the right to privacy cannot be made an absolute right. Subject to reasonable restrictions, the right to privacy could be made valid.
• Rajagopal vs. State of T.N: The court defined privacy as part of Article 21 and as a right to be let alone.
• Justice K. S. Puttaswamy (Retd) Vs Union of India: SC unanimously held that Indians have a constitutionally protected fundamental right to privacy that is an intrinsic part of life and liberty under Article 21.

Features of Right to Privacy [As per the last judgement]

• Constitutionally Protected: Privacy is a constitutionally protected right emerging primarily from the guarantee of life and liberty in Article 21 of the Constitution.
• Sexual Privacy: It includes the preservation of personal intimacies, sanctity of family life, marriage, procreation, the home and sexual orientation.
• Control over life: Privacy connotes a right to be left alone. It safeguards individual autonomy and recognizes one’s ability to control vital aspects of his/her life.
• Still not absolute: Privacy is not an absolute right, but any invasion must be based on legality, need and proportionality.
• Recognition to Informational privacy: Informational privacy is a facet of this right. Dangers to this can originate from both state and non-state actors.

Implications of Right to Privacy Judgement on different sections

1. Society
   • Right to choose: The verdict can also impact restrictions on the right to convert and choice of food.
   • Religious freedom: India has a number of state-level laws against conversion and several states have restricted animal slaughter.
   • Rights of LGBTQ+ community (Section 377): The judgement makes it clear that sexual orientation is part of privacy and constitutionally protected, and that the 2014 verdict upholding Section 377 of the Indian Penal Code is flawed.
2. Government
   • Impediment to policy making: The broad implication is that the government cannot frame any policy or law that completely takes away the citizen’s right to privacy.
   • Reasonable restriction: Government can only place reasonable restrictions on limited grounds such as national sovereignty and security, public order, decency, etc. as mentioned in Article 19(2) of the Constitution.
3. Civil liberties
   • Restrict state: The verdict strikes down the State’s power to suspend civil liberties during emergencies.
   • Strike on emergency ruling: By doing so, it overruled the Emergency era ruling made in the ADM Jabalpur case that had said that the State suspend and take away the liberty of citizens during a proclamation of Emergency.
4. Internet and fintech using personal data
   • Pace with technological developments: SC urged the government to quickly bring in a data protection law to deal with these fast-changing technological developments.
   • Strike on WhatsApp new Policy: The judgment may have a bearing on the pending challenge to a 2016 contract entered into between WhatsApp and Facebook to share user information including messages, pictures, and videos, etc.

Argument in favour of Right to Privacy

• Ensure dignity: Maintenance of privacy is important to ensure dignity of the individual as mentioned in our Preamble.
• Prevent intrusion in personal affairs: Privacy helps to avoid unwanted and intrusive interference in an individual’s personal affairs.
• Stop day-life stalking: Without privacy, there would be nothing to stop a Big Brother-like entity from taking control of every aspect of life.
• Ensure liberty: Rights to liberty and freedom of expression cannot survive if the right to privacy is compromised.
• Remove illegal censorship: Unregulated access to data can lead to the suppression of dissent and censorship.
• Stop data granulating: Private details like travel details, shopping history, financial details, etc., are used to create online granular profiles which are then sometimes used to spread specifically crafted fake news.

Arguments against Right to Privacy

• Hamper Police investigation: Right to Privacy will also restrict police and intelligence agencies to collect private information about accused, dead persons, etc., as mentioned in the DNA Profiling bill.
• Affect welfare scheme: It can hinder the implementation and performance of welfare schemes like Aadhar and DBT, which require personal data of citizens.
• National security: Many times, intelligence agencies use private surveillance to protect national security. This may be hampered.
• Financial impunity: Financial agencies need to track transactions to bring black money under the umbrella.
• Intelligence Work: It reduces the scope to snoop or gather information on potential terror or anti-state elements.

Aadhar – Privacy issue

• Biometric details: It requires the collection of biometric details like iris scanning and fingerprints which are essentially crucial details and could be misused.
• Mass Surveillance: Unlike targeted surveillance, Aadhar is a mass surveillance technology, which makes its users even more vulnerable to leakage of biometric and demographic information.
• Regarding Disclosure of Information: The Act permits sharing information in the interest of national security rather than public emergency or public safety.
• Potential to Profile individuals: The Aadhaar Act does not prohibit law enforcement and intelligence agencies from determining behavioral patterns and profiling of individuals using big data analytics.
• Discretionary powers to UIDAI: UIDAI has been given discretionary powers which means it can specify and collect other information as and when required without prior approval from the Parliament.
• UIDAI has exclusive power to make complaints: A person aggrieved by a breach of data has no remedy at his disposal.
• Compensation: Unlike in western countries, the Act does not have any provision for compensation to the person whose data has been compromised.

What Government should do to Protect Right to Privacy of Citizens

• Individual consent: Must be obligatory for data sharing. Consent must be attained by all entities, including the State, which determine the purpose and means of data processing.
• Data Protection Authority: An independent regulatory body responsible for the enforcement and effective implementation of the law must be established.
• Transparency: Government should monitor and enforce various regulations and laws diligently and transparently.
• Research: Government should promote research and awareness about citizens’ right to privacy.
• Extra consent for sensitive data: Sensitive personal data, such as biometric data, should be prohibited for use without written consent.
• Grievance redressal: The Central Government shall establish an appellate tribunal to hear and dispose of any appeal against an order of breach of privacy.
• Penalties for violation: Penalties should be imposed for violations of the data protection law. Compensation for loss of privacy should be given to individuals from such fines.

Way Forward

1. A rights-oriented data protection legislation is the need of the hour.
   • This includes comprehensive surveillance reform prohibiting mass surveillance and the institution of a judicial oversight mechanism for targeted surveillance.
   • The principle that the State ought to be a model data controller as it deals with its citizens’ personal information.
2. We need a constitutional definition and guarantee of the right to individuality, personal autonomy, and privacy in the digital age.
3. State must put a robust personal data protection mechanism in place in this digital age.
4. Recognition of privacy as a fundamental freedom is an essential deterrent against intrusion into personal space.
5. Protection to citizens against surveillance.
6. Balance must be maintained to protect privacy and to promote national interest.
7. The Right to Privacy should not be limited against the State, but also as a right against private corporations which collect citizen data.

In the era of increased cybercrimes and frauds, it is the government’s responsibility to secure its citizens’ rights. The government should keep a close vigil over various companies and take necessary steps to protect citizens’ privacy.