The implicit fundamental rights in the constitution have been subject to judicial scrutiny time and again. Discuss the issues surrounding the "Right to Privacy" while giving reference to relevant constitutional articles and other such legal instruments.
Constitution of India does not see Right to Privacy as a fundamental right but it has been defined by the apex court as per principles of “Life and Personal Liberty” on many occasions. There have been many landmark judgments on the same issue which yet is unresolved and is mired in ambiguity. Giving it a Constitutional sanctity will mean more compliance and respect towards privacy which can prove dangerous in the digital era which has constant threat to personal space at three prime levels viz. surveillance by the public administration, big corporations which are constantly mining user information and from anti-social elements like hackers who can use it for disruptive activities. The issued has snowballed lately due to the mandatory provisions laid by the Aadhaar of linking PAN with latter.
- Although privacy does not find an explicit mention in the Constitution yet it has been encompassed under the ambit of Article 21 which guarantees the protection of life and personal liberty of an individual. The Supreme Court of India had however rejected “Fundamental Right to Privacy” under two notable cases in 1954 and 1962 which asked for suitable curbs on the policing powers.
- Indian laws on privacy are juxtaposed to the ones existing in other major democracies of the world and also to the Article 12 of Universal Declaration of Human Rights which mentions that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence.”
- Despite many legal pronouncements which have led to an evolution of the same, there remain uncertainties. Some of the notable are:
- M.P. Sharma vs. Satish Chandra(1954): SC upheld that, “constitution-makers did not recognise 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”.
- Kharak Singh’s case (1964): SC stated that Right to Privacy is not a Fundamental Right.
- Govind v State of Madhya Pradesh(1975): Supreme Court duly recognised Right to Privacy as implicit in the Right to Life and Personal Liberty guaranteed by Article 21 but stated that it was not an absolute right and reasonable restrictions can be imposed on basis of public interest.
- R. Rajagopal vs. State of Tamil Nadu(1994): SC ruled that publication of any information without the consent of the person would be a violation of Article 21 unless the information is based on public records. Also, “a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education, among other matters.”
- P.U.C.L. v. Union of India: The apex court defined the standards for telephone tapping and stated that the right to privacy is an integral part of the fundamental right to life enshrined under Article 21 of the Constitution.
- There are legitimate concerns about the vulnerability of the personal data gathered under the Aadhaar programme. Aadhaar has become the foundation of the success of many welfare schemes of the government along with tax administration and online financial transactions. This has raised concerns as biometrics allow for identification of law-abiding citizens in everyday transactions even when there is no need for same. The data will be in system archives for five years from the date of the transaction. Also, linking to Aadhaar numbers to many other databases makes it more vulnerable. This is seen as a violation of personal space of the individual by many social activists who have stated that India is en-route to become a surveillance state.
Thus, there should be robust safeguards in place to ensure there is no unauthorised access to data and any leak in private information of citizens. Aadhaar has now invaded almost every aspect of Indian citizens and has become a cause of concern. Right to Privacy finds itself implicitly placed in Indian Constitution which is a live document and is constantly evolving via amendments and acts as per the need of the time. Privacy thus should be respected in favour of public interest and giving it a Fundamental shape will only make it easier for governments to define a proper framework to facilitate the growing demands of Digital Age.