BY CBP SRIVASTAVA.
Fresh debate over privacy was raised due to a number of petitions which challenged that personal information of the citizens collected under the Aadhaar programme could compromise their privacy. It has been argued that the concept of privacy is embedded in the right to liberty and dignity. The arguments also include that rights under Articles 14, 19 and 21 of the Constitution of India could be exercised only through liberty and freedom of choice.
The Supreme Court of India in Maneka Gandhi v. Union of India AIR 1978 SC 597 had carefully examined the interrelationship between these articles and had observed that “Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of his personal liberty and there is consequently no infringement of fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R.C. Cooper v. Union of India AIR 1970 SC 564 and Shambhu Nath Sarkar v. State of West Bengal AIR 1973 SC 1425 cases. Now if a law depriving a person of his personal liberty and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, ex-hypothesi it must also be liable to be tested with reference to Article 14.”
Further, the Court in Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 held that the three Articles (14, 19 and 21) stood between the heaven of freedom. The Supreme Court finally termed these Articles as the Golden Triangle of the Constitution of India.
The Right to Privacy draws its inspiration from the Fourth Amendment to the US Constitution, 1792 which states that, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. The ultimate goal of this provision is to protect people’s right to privacy and freedom from unreasonable intrusions by the government.” However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law. Moreover, the US Federal Court has made it evident that the claimant shall demonstrate a justifiable expectation of privacy which was arbitrarily violated by the government.
Similarly, recently the Supreme Court of India while hearing the petitions, has held that Right to Privacy would not necessarily overlap with data protection and could not be seen as an absolute right. The Court goes on saying that the concept of liberty and dignity do intersect but it is not necessary that everything under liberty and dignity should be extended to privacy.
Right to Privacy is a common law right; hence the framers of the Constitution did not consciously incorporate it explicitly in the Constitution. According to the Supreme Court, in the digital age instead of focusing on privacy, steps need to be taken to give statutory recognition to data protection.
The Court goes on saying that the concept of liberty and dignity do intersect but it is not necessary that everything under liberty and dignity should be extended to privacy.
Further, a six-judge Bench of the Supreme Court in Kharak Singh v. State of U.P. AIR 1963 SC 1295 (Judgment delivered on 18 December, 1962) held that “the right to privacy is not guaranteed right under the 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.”
As regards fundamental rights in India a three-generation theory may be described here: The first generation of fundamental rights are those provided explicitly by the Constitution (Article 14-32 in Part III); the second generation fundamental rights may be granted by law such as the Right to Information provided under the RTI Act, 2005 and the third generation rights are namely, judicially recognised.
This is the reason why fundamental rights under Article 12 of the Universal Declaration of Human Rights (UDHR), 1948 privacy has been explicitly included.
The most significant aspect of the three generation rights is that for the first-generation rights constitutional remedies are available, while for the second generation, remedies may be provided under law but, for the third-generation rights no such remedies are directly available. In order to get any kind of remedies for judicially recognised rights it is required that it should be linked to some of the rights explicitly provided in the Constitution.
However, such rights assume greater significance in the changing socio-economic and political system as new rights do emerge and these need to be recognised by the Judiciary so that the State may get the inspiration to make laws on them or if required incorporate any of them in the Constitution, for instance Right to Education under Article 21A.
In this backdrop, it is evident that Right to Privacy shall not attract any remedies hence the petitioners sought it through linking the right with the rights enshrined in the Golden Triangle of the Constitution.
With the advent of information technology in the 1960s and 1970s people took interest in the right to privacy. Specific rules were demanded for the regulation of computers and other techniques of information technology. Considering such demand, two major international instruments were created, namely, the Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data, 1981 by the Council of Europe and the Guidelines Governing the Protection of Privacy and Transborder Data Flows of Personal Data by the Organisation for Economic Co-operation and Development (OECD). These guidelines articulate specific rules covering the handling of electronic data.
In public international law right to privacy is considered a fundamental human right, indispensable to the protection of liberty and democratic institutions. It has been historically and philosophically linked to dignity. This is the reason why under Article 12 of the Universal Declaration of Human Rights (UDHR), 1948 privacy has been explicitly included. This instrument is also supported by one of its Covenants adopted in 1966 and also by the European Convention on Human Rights.
The UN General Assembly in December 2015 adopted the Resolution 68/167, which expressed deep concern at the negative impact that surveillance and interception of communications may have on human rights. It was affirmed that rights held by the people offline must also be protected online. Hence, the UN called for respecting and protecting the right to privacy in digital communication. The UN also called upon the states to make legislations to regulate surveillance and interception so that unlawful interference could be prevented. Similarly, the International Covenant on Civil and Political Rights (ICCPR), 1966 also provides that no one shall be subjected to arbitrary or unlawful interference with his or her privacy, or dignity.
Thus, all such provisions in the public international law signify that though privacy is an integral part of the international human rights system and states are obliged to protect it so that people’s liberty and dignity are also protected, such right to privacy is not absolute; a balance could be stricken between the individual and social interests.
As far as the Aadhaar Programme in India is concerned, it covers the biometric system. Biometrics is the process of collecting, processing and storing details of a person’s physical characteristics for the purpose of identification and authentication. Such a system is operational in a number of countries like Russia, France, Germany etc. In India, it assumed significance in the context of identifying and authenticating the beneficiaries to whom the State intends to provide direct benefits, preventing large scale leakages which was earlier a matter of various concerns. Considering this, it would be appropriate to mention here that data protection should not be linked always to privacy for the sake of making the socialist approach truly successful. However, the State should ensure such stringent statutory provisions for preserving the data so that a balance could be stricken between the individual and social interests.