Privacy is a fundamental right - annotations

The Supreme Court’s landmark judgment elevating the right to privacy as a fundamental right is a significant reminder of India’s republican values and their relevance to all classes of people.

• After 70 years of Independence, it would have been highly unpopular for India’s Supreme Court, and any of its judges, to subscribe to a proposition that ran counter to the liberal ethos of the times. 
• Any judge expressing a dissenting view could have run the risk of being seen on the wrong side of history.
• The right to privacy was demanded by only those who had something to hide, said Rakesh Dwivedi, senior counsel for Gujarat. 
• The right to privacy had no relevance for the hungry millions, said the Attorney General, K.K. Venugopal. Privacy was just a facet of liberty, and being amorphous, it could not be elevated to the status of a fundamental right, was the refrain of many respondents before the court.
• Justice Chandrachud - the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action, but on the basis of its effect on the guarantees of freedom.
• In a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties.
• The invasion of a fundamental right was not rendered tolerable when a few were subjected to hostile treatment.
• The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights.
• It is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government.
• The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected by this court.
• The right to privacy is too amorphous to be defined in specific terms and that it should be left to evolve from case to case. 
• A restrictive definition of the right to privacy specifying what it included could hamper its growth in the future. 
• The right to privacy was a fundamental right, without specifying its contours, could limit the state’s pursuit of its development agenda.
• Justice Chandrachud, while agreeing that privacy must be left to evolve case to case, laid down three grounds to justify an invasion of privacy. They are existence of a law, a legitimate state aim suffering from no arbitrariness, and proportionality of the means to the object . 
• The sharing of biometric data, which the Aadhaar scheme entails, involves many facets of the right to privacy.

Petitions challenging the Aadhaar Act will now be heard and decided by regular benches of the Supreme Court in the light of the privacy judgment.

It would have been nice if centre had recognised privacy is a fundamental right made laws attenuating Aadhaar and treated citizens with respect. But it is too much to expect such good things from autocratic Modi. Now privacy has become a fundamental right not by virtue of a constitutional provision nor by an act of parliament but by a judgement of a Supreme Court constitutional bench. This is not the best way. And if centre instead of respecting judgement gracefully searches ways and methods to surreptitiously push Aadhaar for citizen's surveillance and undermine citizens rights they would meet waterloo again and again. BJP & NDA and all parties must realize that they are in power for the citizens welfare and not other way round. But Modi & BJP are notorious for not learning lessons but will attempt to bulldoze on people with their stupid thinking.

Privacy is a fundamental right

• A nine-judge Constitution Bench of the Supreme Court on August 24 unanimously ruled that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution. SC overruled previous judgments on the privacy issue that ruled that privacy is not a fundamental right.
• Justice Chandrachud in his judgment for himself, Chief Justice Khehar, R.K. Agrawal and S. Abdul Nazeer said that privacy is a concomitant of the right of the individual to exercise control over his or her personality. Natural rights like privacy are inalienable because they are inseparable from the human personality. To live is to live with dignity. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfillment of dignity.
• The judgement also stated that - Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. 
• The Union government had argued that privacy is a common law right. The government argued that right to privacy is not expressly included in the Constitution as the founding fathers rejected or jettisoned the idea of inclusion of privacy as a fundamental right. The centre had termed privacy as a "vague and amorphous" right which cannot be granted primacy to deprive poor people of their rights to life, food and shelter.
• The earlier Attorney General Mukul Rohatgi rejected suggestions that Indians could refuse to provide their iris scans or fingerprints to the government, telling a court "the concept of absolute right over one's body was a myth".
• The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.
• A bunch of petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination and bodily integrity. The petitioners argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage. 
• The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering and terror funding.
• Attorney general K K Venugopal had argued that right to privacy cannot be a fundamental right has now welcomed the SC decision. He said that whatever the 9-judge bench says is the correct law.
• Three days ago, PM Modi hailed the SC judgement on triple talak as "historic" and said it grants equality to Muslim women. Today on Privacy rights judgement of SC, he maintained stoic silence so far. He is yet to respond. Why?
• Finance Minister Arun Jaitley said that the apex court has accepted the government’s argument that privacy is a fundamental right, but it’s not an absolute right but will be subjected to restrictions which will be fair, just and reasonable. He blamed that the privacy matter went to the Supreme Court because the UPA government brought about Aadhaar without a law. It is too late to contend that privacy will not be a fundamental right.
• Law Minister Ravi Shankar Prasad made a somersault by welcoming the judgement but said should have "reasonable" restrictions. 
• Mukul Rohatgi said that the government should not have diluted their stand in court because the inclusion or exclusion of fundamental rights is only the proviso of Parliament. It is a very unsatisfactory resolution of the dispute. His view is that the framers of the constitution did not intend to make privacy a fundamental right. He said “The fact is, we haven’t won this case. The eight-judge bench of 1954 has been overruled and the Aadhaar issue has been left unresolved. So where is the question of winning?” Had he still been in office as Attorney General, he would have admitted that the government had lost the case.

Today's verdict is a major setback for the government, which had argued that the constitution does not guarantee individual privacy as an inalienable fundamental right. The verdict however does not comment on whether the government's demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. There are fears that the data could be misused by a government that argued Indians have no right to privacy.

Aadhaar has its uses, but it is also an instrument of control and manipulation. It must be only optional, not mandatory. Aadhaar had already violated the privacy rights with the vast majority of the population already enrolled, their information held in insecure databases, and linked to public and private services. Ambedkar's fears of abuse of constitution without amending it are coming true in Modi's India. In a democracy, ruled by majority, it is the duty of majority to uphold the rights & dignity of minorities. Ambedkar also remarked that democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic. Unfortunately Modi & co believes that minorities must toe line with majoritarian wishes with no individual rights etc.

Read the exhaustive article on the judgement

Is privacy a fundamental right?

The government is pushing for Aadhaar but critics say it violates privacy, is vulnerable to data breaches and helps government spy on people. The Centre has maintained that right to privacy is not a fundamental right and citizens are not guaranteed the right to privacy under the Indian Constitution. The petitioner’s counsel in the Aadhaar case, has compared the situation to one under a totalitarian state where people were being forcefully tagged and tracked by the Centre. The Supreme Court’s nine-judge constitution bench would revisit its rulings that said the right to privacy was not a fundamental right and then hear petitions against the 12-digit biometric identity number.

• An eight-judge bench in 1954 and also by a six-judge bench in 1962 ruled that privacy is not a fundamental right in the constitutional provisions. Textually it is correct today that there is no right to privacy in the Constitution. Even freedom of press is not expressly stated but courts has interpreted it.
• Whether there is any “right to privacy” guaranteed under our Constitution or not and if such a right exists, what is the source and what are the contours of such a right as there is no express provision in the constitution.
• Supreme Court in case after case realised that the rights to liberty and freedom of expression cannot survive if the right to privacy is compromised. Privacy is crucial in digital age. A democracy cannot exist without the Right to Privacy.
• Without right to privacy, the fundamental rights guaranteed under the Constitution of India and more particularly the right to liberty under Article 21 would be denuded of vigour and vitality.
• Privacy can reside in several articles. Lack of privacy can have a chilling effect, triggering freedom of speech protections under Article 19(2). The question of protecting privacy could not depend on first determining the location of the right to privacy. History teaches us that without privacy, the consequences are unimaginable.
• The relationship of the right to privacy with Aadhaar enrolment is what complicates everything. The government is pushing for Aadhaar, saying it is necessary to plug leakages in subsidy schemes and to ensure benefits reach those targeted but critics say the move violates privacy, is vulnerable to data breaches and helps government spy on people.
• If the object of Aadhaar is smoothly functioning government benefit schemes, why give law enforcement agencies or indeed anyone else access to the database at all?
• The Aadhaar Bill has been passed with no public consultation about the privacy safeguards necessary for such a database and no provision for public or independent oversight. The rights to liberty and freedom of expression cannot survive if the right to privacy is compromised.
• Allowing Aadhaar to go ahead unchecked in the manner, seeking linking aadhaar to almost every transaction and aspect in life, is effectively reducing the citizen into a 12-digit number and transforming the country into a concentration camp for the citizens.
• Aadhaar has had an invasive and controversial presence well before the government’s attempt to legitimise it. Our Attorney General (funded by our taxes) has argued that we have no right to privacy. Attorney General KK Venugopal argument that the framers of India’s Constitution “consciously omitted” privacy as a fundamental right is his imagination in wrong direction. Any version of the Aadhaar Bill would have been subjected to close scrutiny. The Bill was deliberately mislabelled as a money bill to avoid scrutiny by Rajya Sabha creating even more suspicion.
• Privacy is an amorphous term which is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens. Attempting to define the right to privacy may cause more harm than good.
• In order to recognise privacy as a right, it would have to be defined first. But this would be a near impossible task as an element of privacy pervaded all fundamental rights enshrined in the Constitution.
• Right to privacy is a pre-existing natural right which is inherent in the Constitution, even though it is not explicitly mentioned. The right to privacy is recognised as a fundamental right under Article 21 of the Constitution. The concept of privacy is embedded in liberty as well as a person's honour.
• Even if the court now finally finds that Aadhaar violates the right to privacy, the damage is already done with the vast majority of the population already enrolled, their information already held in insecure databases, and linked to public and private services. We should all, of course, be praying that the court finds that there are 40 years of consistent judicial support for a fundamental right to privacy, and this cannot be taken away by the government so callously.

Privacy is essential to autonomy and the protection of human dignity. Privacy enables us to create boundaries and protect ourselves from unwarranted interference in our lives. Privacy protects us from arbitrary and unjustified use of power by states, companies and other actors. It lets us regulate what can be known about us and done to us, while protecting us from others who may wish to exert control. Privacy is a fundamental human right. Over 130 countries have constitutional statements regarding the protection of privacy. Despite international human rights law, it’s all too common that privacy is violated by states and companies. While we should continue to fight for our privacy under the law, the best thing we can do as users to who value our right to anonymity, is to use internet tools. 

My View:
This BJP/NDA government headed by Modi by aggressively promoting expensive cashless transactions with artificial cash shortage is just like sales chief of those companies rather than leader of the nation. He has no respect for rights of citizens. His aim is to increase revenues not by promoting economic activity but by tracking almost all transactions and arm twisting people and collecting more taxes for funding his trophy projects and worthless ideas while leaving poor & peasants in distress. Can you imagine leader of largest democracy in the world arguing in Supreme Court that citizens, who elected him, have no right to privacy except what ever is granted by his stupid brains? His thinking doesn't understand that privacy is fundamental right of humans and doesn't require any constitution or laws for recognizing this.