Various Issues related to Right to Privacy
Right to privacy is the most cherished right in any civilized society. Owing to technological revolution, the concern for privacy has become greater than at any time in recent history. The speed with which information today is produced, collected and analyzed, has redefined the “definition of personal data”. For instance, the personal information of user can be easily generated by tracking his movement on various internet platforms like social media, online transactions, browsing history etc. This has further raised the dilemmas of what constitute the private and personal information.
- International Conventions around right to privacy
- Right to Privacy as Fundamental Right
- Right to Privacy and Aadhaar Card Issue
- Digital India vis-a-vis Right to Privacy
- DNA Profiling Bill vis-a-vis Right to Privacy
- Right to Privacy and Media Trial
- Right to Privacy Bill, 2014
- Concluding Remarks
International Conventions around right to privacy
Two international conventions are of particular importance in terms of privacy rights. These include Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights.
Universal Declaration of Human Rights, 1948
The article 12 of UDHR provides that – “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”
International Covenant on Civil and Political Rights
Article 17 of International Covenant on Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honor and reputation”.
India and international conventions
India has ratified both the above conventions – which means State has to enact laws to ensure that citizens are protected from unwarranted intrusion into their privacy.
Right to Privacy as Fundamental Right
Right to privacy was earlier recognized as “implicit” in the right to life and liberty – guaranteed by Article 21 of the constitution. However, implicit rights have been subject to judicial scrutiny time and again.
As per current judicial pronouncements, the right to privacy is a fundamental right enforceable against state as held by the Supreme Court in R.Rajagopal v. State of Tamil Nadu.
Further, the right to privacy could also be extended against private persons through the law of torts (torts are law dealing with ‘civil wrongs’).
Evolution of Right to Privacy via various Judicial pronouncements
Various Judicial interpretations related to right to privacy could be traced back to case of M.P. Sharma v. Satish Chandra (1954) wherein SC held that “constitution-makers did not recognize the fundamental right to privacy, analogous to the American Fourth Amendment and the said right cannot be imported into the Constitution by some process of strained construction”. Therefore under this judgment, right to privacy was not a Fundamental Right.
Similarly, in Kharak Singh’s case (1964), the petitioner Kharak singh challenged the constant surveillance on him by U.P police on grounds of violation of article 19 and 21. But a six judges bench of Supreme Court struck down the petition holding that Right to Privacy is not guaranteed under constitution.
It was in Govind v State of Madhya Pradesh (1975) case when Supreme Court recognized Right to Privacy as implicit in the Right to Life and Personal Liberty guaranteed by Article 21 of the Constitution. However, court made it clear that this was not an absolute right and reasonable restrictions can be imposed on basis of public interest.
In R. Rajagopal vs. State of Tamil Nadu (1994) an auto driver, who was sentenced to death in a case of murder, disclosed in his autobiography his relations with some public officials. The SC held that publication of any information without the consent of the person would be violation of Article 21.The only exception is when the information is based on public records. SC further said “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education, among other matters.”
Further in P.U.C.L. v. Union of India , the Supreme Court of India, while laying down the standards for telephone tapping had observed that the right to privacy is an integral part of the fundamental right to life enshrined under Article 21 of the Constitution.
So the SC has liberally interpreted Article 21 so as to ensure an individual a dignified and meaningful life. We note here that our constitution is a living document which evolves and grows with the changing needs of society. This is testified by number of amendments done in our constitution after its enactment and recognition of new rights under article 14,19 and 21. Therefore even if it is not incorporated as a FR then also its an inferred right under article 21 and subject to reasonable restrictions on the basis of public interest (Govinda Vs State of Madhya Pradesh). Therefore its very much embedded in the constitutional scheme.
Right to Privacy and Aadhaar Card Issue
The Aadhaar project was challenged on grounds of violating the right to privacy. The government has defended Aadhaar on the basis of the 1954 SC judgment, wherein it was held that Right to privacy is not a fundamental right. While defending the scheme, Attorney General said that privacy as fundamental right has been to various judicial interpretations, and its constitutional status is ‘vague’. Currently, the matter is referred to a larger constitutional bench.
Whether Aadhaar Infringing Right To Privacy?
Aadhaar is a 12 digit individual identification number which will serve as a proof of identity and address, anywhere in India. Its objective is to provide social security benefits by plugging the leakages, thus, ensuring transparency and good governance. But the scheme has raised various concerns.
Firstly, the collection of biometric data (iris scan, finger prints) has been left in hands of private agencies, thus, raising concerns of its misuse. Secondly, the scheme has been launched without any backing of law and therefore there is no guarantee that data will not be used for any other purpose. For example by law enforcement agencies for snooping on citizens etc. Therefore, breach of right to privacy has become central issue.
The question is, should Aadhaar be held illegal and government scrap the project?
- One argument is that huge amount of money has already been spent on the scheme , so it should not be scrapped on grounds of violation of breach of privacy. The counter argument is that nobody is contested potential of the scheme, and it is accepted that Aadhaar can bring much desired changes in the government service delivery mechanism. But even if large amount of money has been spent on any policy; and then it poses greater danger, then it will undermine its benefits in long run.
- Second argument put forth is – in our country where the benefits of schemes are yet to reach the poor, people should be ready to waive their right to privacy in lieu of benefits. This argument is countered on the basis that there is no question of trade off between two things. Since right to livelihood through various social entitlement schemes and right to privacy are equally important; both the rights together converge towards a decent living.
- Third argument posed by Attorney General in court is that- What harm can Aadhaar do when the Right to Privacy of a citizen has become a futile notion in an era when Face book can track every detail, thought and movement through its ‘WhatsApp’ app? This argument is valid to a great extent and the problem is that most of these servers are located outside India. The sites such as Google, Facebook can easily share the data, thus infringing the individuals right without his / her permission. However, start has to be made somewhere regarding framing of proper rules and regulations esp. when technology has invaded every aspect of our life.
The issue of ADHAAR vis-a-vis privacy has to be dealt in right perspective. Aadhaar is a well thought out scheme which has potential to bring immense benefits to the people. However, government should have legislated a proper law which could guarantee privacy of data and provide stringent measures for any misuse. The legislation should also include the purpose for which the data could be used. It will ensure a balance in effective delivery of government services and protection of privacy rights of citizens.
Digital India vis-a-vis Right to Privacy
Digital India is an initiative of the Indian government to integrate the government departments with citizens of India. As part of the initiative, Government is building a big database platform which consolidates its public records. Under the project all the records of police, legal system files will be merged to the database. Government is also planning to build a new own platform for provision of social security benefits, payment systems and property registration etc. The project also aims at provision of internet connectivity in rural areas. E-Aadhar scheme, DigiLocker initiative, National Scholarship portal and MyGov platform etc. are some of the initiatives under the Digital India project.
Right to privacy
The concerns about privacy issues with Digital India get legitimacy from the fact that its massive project, would generate a lot of data; and foreign collaboration is one of the pillars on which it would stand. Once the data is sold outside the country, it is not only subject to misuse but also is out of national jurisdiction. Without proper safeguards the privacy of the people would be surely encroached.
The problem is compounded with the fact that India does not have a specific legislation on privacy data protection. Indian courts have recognised the right to privacy only in bits and parts, as traditionally contained in common law and criminal law.
DNA Profiling Bill vis-a-vis Right to Privacy
DNA is made up of sequence of nucleotides and this sequence is different for each individual. Each sequence acts like a code that determines the characteristics of particular individual. Therefore, an individual’s DNA profile created by recording the sequence of nucleotides is unique. There is only one in trillion possibilities that two individuals could have same DNA profiles. This is very important in forensic science because DNA of an individual could be collected from an individual’s sputum, blood and even from a single strand of hair. So if a crime’s suspect DNA is found to be match with DNA present at crime scene than it could be inferred that suspect was present at scene of crime.
Human DNA Profiling Bill
The idea of a Human DNA profiling bill was mooted first by previous NDA Government in 2003. Since then, it has been discussed in various parliamentary committees but has not seen the light of the day. In 2015, it has been once again proposed by the current NDA government.
Salient Features of the bill
- The bill proposes to allow collection of samples from private parts of human body for DNA profiling and data preservation with the approval of a regulatory body.
- It suggests that a National DNA Profiling Board and a National DNA Bankbe set up in Hyderabad, with every state having a regional DNA data bank. The DNA Data Bank would maintain records of samples found at crime scenes, or from suspects, offenders, missing persons, volunteers, etc.
- The bill also makes it clear that no DNA Laboratory shall undertake DNA profiling without the prior approval of the DNA Board.
- If a foreign country requests DNA profiling, the DNA Bank will coordinate through CBI or a concerned department.
- The bill mandates that the DNA profiles or samples be kept confidential, and they should be used only for establishing identity of a person and nothing else.
- Government investigation agencies and judiciary, among others, can seek information from Data Banks. For unauthorized use of data, a stringent punishment is provided.
- Admissible in court
- Bill legalizes collection and analysis of the DNA samples for Repeat offenders, suspects, missing persons, unknown deceased persons, volunteers for forensic purposes.
- CrPC had been amended in 2005 to allow collection of such data- DNA profiling
Serious concerns have been raised regarding various provisions of the bill ranging from its reliability to its potential for misuse and errors. Among others, right to privacy is one of the important concern of this bill. These concerns are discussed as below:
- The bill does not guarantee that data will not be used for anything other than specified purpose. Its proposal to constitute a national DNA databank for forensic and non-forensic purposes, could be misused if not accompanied strong privacy laws.
- Other than criminal investigation, bill allow use of data for non-forensic purposes such as to identify victims of accidents or disasters, to identify missing persons, and for civil disputes. The objection is that this data could be used by state for surveillance over its citizens, thus making them vulnerable.
- The bill allows a sample to be collected from a suspect for any offence without any judicial or other oversight. Even in a minor crime government can take DNA sample of large number of suspects. This exercise does not require any consent of the individual, his parent or guardian. So, this could be misused because any individual could be falsely arrested on suspicion basis with the sole purpose of obtaining his DNA.
- Then, there is no clear provision regarding deletion of DNA profiles of suspects’ arrested in a crime whose conviction was overturned. The bill says deletion will be implemented as per the notification of court. Critics argue that there should be a proper time frame so as to maintain the trust of public.
- The bill even allows the creation of population statistics, identification research, parental disputes, issues relating to reproductive technologies and migration.
- These provisions could one day allow the government to push civilians to provide DNA data.
- Linking UID to DNA -> all personal data with government.
Right to Privacy and Media Trial
The media trial has been alleged to violate the Fundamental Right secured by Article 21 (right to life and liberty) of an individual. The argument supporting this says that during media trial, not only the suspects and accused but also the victims suffer from excessive publicity and invasion of their privacy rights. When the media unilaterally conducts a sting operation, it violates the privacy of another person and makes it liable for legal action. The right to privacy of an individual should be protected unless there is an identifiable large public interest.
Under the RTI act is also an exception under section 8 (1) (j), which exempts disclosure of any personal information which is not connected to any public activity or of public interest or which would cause an unwarranted invasion of privacy of an individual. However, what constitutes an unwarranted invasion of privacy is not defined. (Full article is here: Media Trial)
Right to Privacy Bill, 2014
Currently, the Right to Privacy in midst of drafting. The first such draft came in 2011 and the current bill is Right to Privacy Bill 2014. This bill recognizes the Right to Privacy as a part of Article 21 of the Indian Constitution. The objective of this bill would be to protect individuals against misuse of data by government or private agencies. It says that an individual’s right to privacy cannot be infringed except in certain circumstances, such as for protection of India’s sovereignty or integrity, national security, prevention of commission of crime and public order. Unauthorised collection, processing, storage and disclosure of personal information would be treated as infringement of privacy. There are penal provisions for violation of the provisions of the bill.
Current Status of Right to Privacy Bill 2014
Currently, the bill is in limbo. It was reported recently that the law enforcement agencies are willing to seek exemption from the regulatory framework. Thus, the intention of such bill are also not devoid of doubts.
Even though there is a legitimate concern about privacy issue in the Digital India campaign, it is essential to provide better governance in the country. Only technology and innovation can provide the massive changes that are required in the country. However, such a project must be accompanied with a Data protection and privacy law. Citizens of the country should be taken into confidence about their privacy before the implementation of the project.