Various Issues related to Right to Privacy
Right to Privacy as Fundamental Right
Evolution of Right to Privacy via various Judicial pronouncementsVarious 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
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.
ArgumentsThe 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.
ConclusionThe 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
Right to privacyThe 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
Human DNA Profiling BillThe 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
- 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
Right to Privacy Bill, 2014
Current Status of Right to Privacy Bill 2014Currently, 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.