![WISDOM CRUX [ISSN 2456-6233]](https://www.wisdomcrux.lawtimesjournal.in/wp-content/uploads/2020/12/WISDOM-CRUX-ISSN-2456-6233.png)
[Volume 2, Issue 9]
Author – Amritanshu Jha, BBA.LLB, Sharda University
ABSTRACT
A drastic change has been brought in Constitutional Jurisprudence by the Supreme Court of India via the landmark judgement declaring “Right to Privacy” being the inherent fundamental Right of every citizen of India. Apex court has widened the scope of Article 21 of the Indian Constitution by including Right to Privacy within its ambit in the case of K.S Puttaswamy v. Union of India 2017 SC 996.
In this paper the researcher will be dealing with the meaning of “Privacy”, from where its evolution can be traced in terms of case laws and constitutional provisions, International Statutes
The Supreme Court expressly held “right to privacy” or right to be let alone is guaranteed under Art. 21 of Constitution in “Auto shanker case” R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632. Following it in Mr X v. Hospital Z AIR1995 SC 495 the Supreme Court held that right to privacy is fundamental right but not an absolute right. Time and again question was raised before Supreme Court asking whether Right to Privacy is a fundamental right or not, and hence it again came to be questioned in (the phone tapping case) People’s Union for Civil Liberties v. Union of India AIR 1997SC 568where Supreme Court observed phone tapping is serious invasion of right to privacy which is part of “life and personal liberty”. when a landmark judgement given in K.S Puttaswamy v. Union of India 2017 SC 996 which overruled Kharak Singh v. State of U.P AIR 1963 SC 1295 and M.P Sharma v. Satish Chandra Distt. Magistrate, Delhi AIR 1954 SC 300 stating Right to privacy as an intrinsic fundamental right.
This Judgement gathered its outmost importance by including question on Biometric data in Aadhar Card whether infringes privacy of Individuals. India being an International party to the Universal declaration on Human Rights and International Covenant on Civil and Political rights had to frame policies accordingly but due to some lacuna in policy framing the legislation was not passed at the time but Adhar concept was brought in Action. Researcher will further up bring relevance of privacy and Aadhaar in this paper.
INTRODUCTION
“Relying upon government to protect your privacy is like asking a peeping tom to install your windows blinds”[ref] BarlowJohn Perry [/ref] –By John Perry Barlow.
We are humans of a generation who is witnessing drastic change in constitutional jurisprudence and bases for new evolution has been laid in Puttaswamy case dealt by the Apex court. Before dealing and discussing with privacy we shall know what privacy means:-
Privacy is that state of an individual which he wants to keep within himself and never publicise. In the words of Louis Brandies and Samuel Warren “Privacy is that sphere of existence and activity that properly belongs to that Individual alone, where he should be free from strain, coercion, and uninvited surveillance”. Therefore it means privacy covers cases such as where an authority force someone to reveal his personal information against his personal will. [ref] Brandies Louis and Warren Samuel [/ref]
We are familiar with the word privacy and is always concerned for its security but few can understand the depth in the meaning of word privacy and with the advancement of technologies our society is progressing rapidly but it’s a mere fact that every things comes with a twofold context where we are forced to look the positive and negative sides respectively. Definitely advancement of technologies had made human a super power but it has also brought a threat to the secrecy of man’s sensitivity. We are always keeping our personal details hidden from strangers because we never want it to be used against us or for other’s benefits. We cannot think a world without privacy and if there is no privacy there would be no individual security, one will be vulnerable to control of others and it might led to inhabitation and can also be manipulated. Overall we can say privacy has become an intrinsic part of our life.
EVOLUTION OF PRIVACY IN EYES OF LAW.
PRE INDIPENDENCE[ref] http://www.rtifoundationofindia.com/evolution-right-privacy. [/ref]
In pre independence era we can trace privacy rights in Constitution of India Bill 1895, it is this legislation where idea to privacy instigated. The text of Bill read “Every citizen of India has in his house inviolable asylum” which meant that state could not invade without lawful legislation in man’s castle. Very person shall have fundamental right to liberty of person and security of his dwelling property”.
Constituent Assembly (CA) debates on the right to privacy: The Constituent Assembly set up an Advisory Committee on Fundamental Rights, Minorities etc. chaired by Sardar Vallabhbhai Patel. A sub-Committee on Fundamental Rights was set up under the Chairmanship of Acharya JB Kripalani. Various members of the CA sent their views on what fundamental rights guarantees should be incorporated in the Constitution.
On the right to privacy, KT Shah wanted the following formulation (December 1946):
“Every citizen of India has and is hereby guaranteed security of his person, papers, property, house or effects against unreasonable searches or seizure.”
KM Munshi‘s note called for this formulation in March 1947:
“Every citizen… has the right to the inviolability of his home. Every citizen… has the right to the secrecy of his correspondence. Every person has the right to be free from interference in his family relations.” Two rights were recognised for citizens and one for everybody, including non-citizens.
Harnam Singh called for this formulation inspired by the Czech Constitution (March 1947):
Every dwelling shall be inviolable”. The right to privacy was expected to be attached to a physical space instead of an individual’s person.
Dr BR Ambedkar gave a more elaborate formulation (March 1947) favouring a collective right over an individual one:
“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Dr Ambedkar wanted to fit in a strong safeguard against violation of the right to privacy, but at the same time allowed for State action where required under strict monitoring by the judiciary.
In March 1947, the Subcommittee on Fundamental Rights approved the following draft formulation for discussion: “The right to inviolability of his home to all persons. The right of secrecy of his correspondence – to all citizens. “Later in April, the final formulation was approved as follows: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized. The right of every citizen to the secrecy of his correspondence.” The compromise formula recognised the language proposed by Dr Ambedkar and K T Shah and KM Munshi.
However, noted jurist Alladi Krishnaswamy Ayyar, former Editor of Hindustan Times Sardar K M Panikkar, both members of the CA, and its eminent constitutional advisor Benegal Narasingh Rau threw a spanner in the works. They argued that guaranteeing the right to privacy would impede law enforcement and the criminal prosecution of conspirators who will most likely be captured in their dwellings. They also pointed out that the Constitution of USA did not explicitly guarantee the right to privacy to its people. So the Advisory Committee on Fundamental Rights dropped the proposal to recognise the right to privacy as a fundamental right[ref] WWW.COUNTERVIEW.ORG. [/ref]
POST INDIPENDENCE
The era of post-independence viewed the matter of right to privacy in process of case by case as every case being unique and Supreme Court decided matters accordingly and held the rights as per cases. The major cases came up to Supreme Court:
In the early time our hournable Supreme Court dealt the case of M.P. Sharma[ref] M.P SHARMA v. SATTISH CHANDRA DISTT. MAGISTRATE, DELHI AIR 1954 SC 300. [/ref] in which the question raised was on Constitutional validity of search and seizure saying their private record were taken away. The Bench held that “The power of search and seizure is, in any system of jurisprudence, and overriding power of state for the protection of social security and that power as necessarily regulated by law. When Constitutional maker have thought fit not to submit such regulation to Constitution limitation by recognition of Fundamental Right to Privacy analogous to American Fourth amendment, there is no justification for importing into it, a totally different Fundamental Right by some process of strained Constitution.
Following in Kharak Singh[ref] KHARAK SINGH v. STATE OF U.P AIR 1963 SC 1295. [/ref] the Constitutional validity of Chapter XX and power of conferred upon police officials on ground that they have violated article 19 (1)(d), and 21. simultaneously the court held “Right to privacy is not a guaranteed right under constitution and there for the attempt to ascertain the movement of an individual is merely a manner in which privacy is invaded and is not infringed under part III of the constitution”. Whereas in R. Rajagopal v. State of TamilNadu[ref] R. RAJAGOPAL v. STATE OF TAMIL NADU (1994) 6 SCC 632. [/ref] the Supreme Courthas expressly held “Right to privacy”or the Right to be let alone is guaranteed by Art. 21 of Constitution[ref] 50th ed. PANDEY J.N, THE CONSTITUTIONAL LAW OF INDIA, PARA 1, 259. [/ref]. Again in the case of Mr X v. Hospital Z[ref] MR. ‘X’ v. HOSPITAL ‘Z’ AIR1995 SC 495. [/ref] the Supreme Court held that although the “Right to Privacy” is a fundamental right under Art. 21 of Constitution but it is not an absolute right and restriction can be imposed on it for prevention of crime, disorder or morals or right and freedom of others.[ref] 50th ed PANDEY J.N, THE COSTITUTIONAL LAW OF INDIA, PARA 2,260. [/ref].
In the recent filed PIL by Retired J. Puttaswamy[ref] JUSTICE K.S PUTTASWAMY v. UNION OF INDIA WRIT PETITION (CIVIL) NO. 494 OF 2012 [/ref] asking whether privacy is a fundamental right or not the nine judge’s bench of Supreme Court anomalously held “the right to privacy is an intrinsic part of right to life and personal liberty under Art. 21 of our constitution”[ref] JUSTICE K.S PUTTASWAMY v. UNION OF INDIA WRIT PETITION (CIVIL) NO. 494 OF 2012. [/ref].
Therefore the verdict of Supreme Court is seen changing as per merits of the case and eventually privacy is declared as a fundamental right of citizen of India over ruling M.P Sharma[ref] M.P SHARMA v. SATTISH CHANDRA DISTT. MAGISTRATE, DELHI AIR 1954 SC 300. [/ref] and Kharak Singh[ref] KHARAK SINGH v. STATE OF U.P AIR 1963 SC 1295. [/ref] case.
INTERNATIONAL LAW ON PRIVACY
India being an International part to certain treaty and member of certain International laws has to look that there laws shall be in line with International Laws. The two major laws relating to privacy in international status are:
Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”[ref] ARTICLE 12 OF UNIVERSAL DECLARATION OF HUMAN RIGHTS. [/ref]
And International Covenant on Civil And Political Rights states that “Article 17 mandates the right of privacy, This provision, specifically article 17(1), protects private adult consensual sexual activity, thereby nullifying prohibitions on homosexual behaviour, however, the wording of this covenant’s marriage right (Article 23) excludes the extrapolation of a same-sex marriage right from this provision. Article 17 also protects people against unlawful attacks to their honor and reputation. Article 17 (2) grants the protection of the Law against such attacks”.
These two rights are major right which speaks for privacy and shall be not in contravention to any member country.
AADHAAR’S CONTEXT IN PRIVACY.
The scheme of central government and Unique Identification Authority of India (UIDAI) for providing unique identification number or AADHAAR and collecting of data base such as biometrics of a person and linking it to UID has certainly came in contravention of Privacy rights of individuals. Linking of such data and being surveillance by some government employee. These data are collected for monitoring under Information Technologies Act 2000. The people of India shall know that any misuse of this data can lead to an irreparable damages and injury. Ordinary people will have no control over their data and can be misled by anyone reviewing it. Any cyber-attack or hacking of such data will lead people of India to a state where they will have no power or even a chance to secure their data which has been submitted to the government.
Although the department have collected almost data of Indian citizen and is trying to make people believe that those data will have end to end safe and enatact with government but it’s a gamble on part of government because there are certain example where different country has been under cyber-attack and led to a miserable conditions. Certainly AADHAAR is a threat to the privacy of public’s personal information on point of Data Security, personal and bodily integrity and obviously the biometrics.
The linking of every minute detail of a person from his figure print to his bank account and retina scan to uninvited surveillance, has resulted in creation of a concern whether privacy is in hiding acute detail by oneself or giving up your details in hand of government officials whom we never know. These are the areas which are clubbed to form a question of concern and serious threat to once integrity.
AADHAAR AND SSN
Most of the time AADHAAR is compared to United States SOCIAL SECURITY NUMBER, and it is said that the Indian government has brought a concept equivalent to United States Scheme. Is it true?
SSN is enacted under Social Security Act 1935 and Privacy Act, whereas for AADHAAR U-I Authority bill has been drafted but not enacted and Information Technologies Act 2000 is also applicable. SSN alone does not serve as an Identification for the citizen but is used to track Individual in Social Security System but AADHAAR is single proof of identity of Individuals with his Biometrics and other relevant data. It is said UIDAI data generated at multiple source would come to CIDR then data is processed in data warehouse using business tools and converted into forms that can be accessed and share easily, the biometrics with AADHAAR number storage, access and disclosure of this information would be protected as per the rules but AADHAAR number is not explicitly protected. But in case of SSN [ref] SOCIAL SECURITY NUMBER [/ref], it is protected by privacy Act and various state legislation.
Therefore in comparison also it lacks the essence to provide security to data of an Individual, so it come up in front of the Apex court which will be certainly give its verdict after declaration of privacy as a fundamental right.
CONCLUSION
The researcher comes to a conclusion that concept of privacy under Constitution was underlying which was brought up time and again but never got stability but with the recent judgement it has provided a rock solid status to Right to Privacy under Article 21 of the Constitution. This has not only provided a status but has guided the government to enact and provide schemes and legislations accordingly. We can say that this decision has certainly limited the scope of Aadhar and in future we will witness some better concreted scheme of government related to Aadhar.
The Supreme Court has safeguarded and protected the rights of Indian citizen as always since its establishment.