Right to Privacy now a Fundamental Right

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The Constitution of India provides Fundamental Rights under Chapter III

These rights are guaranteed by the constitution. One of these rights is provided under article 21 which reads as follows:-

Article 21: Protection Of Life And Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

Though the phraseology of Article 21 starts with negative word but the word No has been used in relation to the word deprived. The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only. If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person. Such violation would not fall under the parameters set for the Article 21. in such a case the remedy for aggrieved person would be either under Article 226 of the constitution or under general law. But, where an act of private individual supported by the state infringes the personal liberty or life of another person, the act will certainly come under the ambit of Article 21. Article 21 of the Constitution deals with prevention of encroachment upon personal liberty or deprivation of life of a person.

The state cannot be defined in a restricted sense. It includes Government Departments, Legislature, Administration, Local Authorities exercising statutory powers and so on so forth, but it does not include non-statutory or private bodies having no statutory powers. For example: company, autonomous body and others. Therefore, the fundamental right guaranteed under Article 21 relates only to the acts of State or acts under the authority of the State which are not according to procedure established by law. The main object of Article 21 is that before a person is deprived of his life or personal liberty by the State, the procedure established by law must be strictly followed.

Right to Life means the right to lead meaningful, complete and dignified life. It does not have restricted meaning. It is something more than surviving or animal existence. The meaning of the word life cannot be narrowed down and it will be available not only to every citizen of the country . As far as Personal Liberty is concerned , it means freedom from physical restraint of the person by personal incarceration or otherwise and it includes all the varieties of rights other than those provided under Article 19 of the Constitution. Procedure established by Law means the law enacted by the State. Deprived has also wide range of meaning under the Constitution. These ingredients are the soul of this provision. The fundamental right under Article 21 is one of the most important rights provided under the Constitution which has been described as heart of fundamental rights by the Apex Court.

Some Supreme Court Judgements on Privacy:

The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. In this case the word deprivation was construed in a narrow sense and it was held that the deprivation does not restrict upon the right to move freely which came under Article 19 (1) (d). at that time Gopalans case was the leading case in respect of Article 21 along with some other Articles of the Constitution, but post Gopalan case the scenario in respect of scope of Article 21 has been expanded or modified gradually through different decisions of the Apex Court and it was held that interference with the freedom of a person at home or restriction imposed on a person while in jail would require authority of law. Whether the reasonableness of a penal law can be examined with reference to Article 19, was the point in issue after Gopalans case in the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a procedure for depriving a person of his life or personal liberty.

Most important SC judgements in this regard:

M P Sharma & Others vs Satish Chandra, District Magistrate, Delhi & Others March 15, 1954

The case related to search and seizure of documents of some Dalmia group companies following investigations into the affairs of Ms Dalmia Jain Airways Ltd, a group concern, which was registered in July 1946 and went into liquidation in June 1952. The probe indicated malpractices within the company and attempts to conceal from shareholders the actual state of affairs by submitting false accounts and balance sheets. An FIR was registered on November 19, 1953, and a request was made to the District Magistrate, Delhi, for search warrants.

The DM issued the warrants, and searches were carried out at 34 places belonging to the group. Voluminous records were seized. In writ petitions before the Supreme Court, the aggrieved parties challenged the constitutional validity of the searches saying their private records were taken away, and claimed that it violated their fundamental rights under Articles 19(1)(f) — right to acquire, hold and dispose of property — and Article 20(3) — protection against self incrimination.

In its judgment dated March 15, 1954, the eight-judge Bench comprising the then Chief Justice Mehar Chand Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, T L Venkatarama Aiyyar, B K Mukherjea, Sudhi Ranjan Das and Vivian Bose held that “a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.”

Kharak Singh vs The State of UP & Others December 18, 1962

Petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.

In his writ petition, Singh challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials there under on the ground that they violated his fundamental rights under Articles 19(1)(d) — right to freedom of movement — and 21 — protection of life and personal liberty.

His petition was adjudicated by a six-judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, J C Shah and J R Mudholkar. In the judgment delivered on December 18, 1962, the Bench struck down Clause (b) — domiciliary visits at night — of Regulation 236, but upheld the rest. The Bench also held that “the right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights)”.

[Aug 2017]- The Supreme Court has unanimously held that the Right to Privacy is a Fundamental Right under Article 21 of the Constitution of India.

The decision in Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors was rendered by a Bench of 9-judges.

A number of writ petitions were tagged along with Justice K Puttaswamy’s petition on Aadhaar, which led to the constitution of this 9 Judge Bench. A slew of Senior Advocates had appeared for various parties in the case.

Here is a brief summary of what was held;

  • Decision in MP Sharma overuled.
  • Decision in Kharak Singh, to the extent it says Right to Privacy is not part of Right to Life, is over ruled
  • Right to Privacy is an intrinsic part of life and personal liberty under Article 21.
  • Decisions subsequent to Kharak Singh which held privacy as part of right to life are correct.

A number of writ petitions were tagged along with Justice K Puttaswamy’s petition on Aadhaar, which led to the constitution of this 9 Judge Bench. A slew of Senior Advocates had appeared for various parties in the case.

The Supreme Court’s landmark verdict making individual privacy a fundamental right will impact daily lives in ways that range from eating habits to online behaviour, and from sexual preferences to welfare scheme benefits. 
Aadhaar: The world’s largest biometric project. The government has collected biometric and demographic data of 1.17 billion Indians, which it claims will help in plugging leaks in social welfare schemes. Several petitioners had challenged Aadhaar claiming that since it is mandatory in all but name, it goes against their right to privacy. The government argued that Indians don’t have a fundamental right to privacy, which a nine-judge Bench disagreed, stating unanimously that all Indians do, indeed, have a constitutionally protected fundamental right to privacy.

Biometrics: Biometric data include photographs, fingerprints, iris scans etc., which can be used to identify a person. Apart from the welfare schemes in which it is used to validate a beneficiary’s identity, India is pushing it for a host of other services, and companies are building technology to use this biometric data. Activists say such a large repository of biometric information can be used as a tool of mass surveillance.

Consent/Choice: In the backdrop of growing acts of violence against those perceived to be involved in beef trade or those who allegedly eat beef, the nine-judge Bench in the privacy case said nobody “would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life”. At a time of increasingly intrusive majoritarianism, the court has made it clear that “liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind”.

Data-mining: Earlier this year, India’s richest man, Mukesh Ambani, said: “The foundation of the fourth industrial revolution is connectivity and data. Data is the new natural resource. We are at the beginning of an era where data is the new oil.” The Supreme Court noted: “Recently, it was pointed out that Uber, the world’s largest taxi company, owns no vehicles. Facebook, the world’s most popular media owner, creates no content. Alibaba, the most valuable retailer, has no inventory. And Airbnb, the world’s largest accommodation provider, owns no real estate. Something interesting is happening. Uber knows our whereabouts and the places we frequent. Facebook at the least knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to.”

Euthanasia: Indian law disallows medically assisted suicide. But the Bench said the right to privacy includes the right to refuse food or even medicine. Justice J Chelameswar wrote, “An individual’s rights to refuse life prolonging medical treatment or terminate his life is another freedom which falls within the zone of the right of privacy…”

 Financial Technology: As Internet penetration increases, so does the opportunity for financial institutions to use technology to capture and service clients better. The Narendra Modi government has been an enthusiastic backer of FinTech, using Jan Dhan Accounts, Aadhaar and Mobile, to reach a large section of the population that lay outside the banking system. On the other hand, extensive use of FinTech in a country with poor Internet literacy and little awareness of cyber hygiene is in itself a threat to the integrity of the financial system.

Google, etc.: Companies such as Google, Facebook, Uber, Airbnb, Amazon, etc. probably have more data on users than the governments of their countries. The privacy of citizens needs protection from these non-state players, too. As Justice S K Kaul said, “Children around the world create perpetual digital footprints on social network web sites on a 24/7 basis as they learn their ‘ABCs’: Apple, Bluetooth, and Chat, followed by Download, E-Mail, Facebook, Google, Hotmail and Instagram.”

Health records: Health Records are important, private documents, whose publication can lead to social embarrassment and worse. “An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy,” the Supreme Court said, qualifying its position, however, by saying that if such records are collected by the state preserving the anonymity of individuals, “it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it”.

Information control: Justice D Y Chandrachud mentioned three internationally accepted aspects of privacy: spatial control, decisional autonomy, informational control. The third facet is particularly relevant in today’s “era of ubiquitous dataveillance”, he said. “Informational privacy”, the judge said, “is a facet of the right to privacy”, adding that “the dangers to privacy in an age of information can originate not only from the state but from non-state actors as well”. Informational control, Justice Chandrachud said, “empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person”.

Juvenile justice: The Juvenile Justice Act was mentioned by the government to argue that India does not need a fundamental right to privacy. The Act guarantees that “every child shall have a right to protection of his privacy and confidentiality, by all means and throughout the judicial process”. While the JJ Act makes the child’s privacy a statutory law right, last week’s privacy judgment reinforces the right of each child to have his details kept private even if he or she is charged for a crime.

KYC: ‘Know Your Customer’ is a mandatory requirement for the government — and extremely valuable for businesses such as insurance firms, banks, credit card companies, e-commerce firms, etc., who must know their customers as intimately as they can to tailor products for them. This is being done using unstructured data trails — cookies, metadata etc — on the Internet. Companies are sharing and trading individual profiles as commodities. The privacy judgment is likely to put a degree of check against unauthorised ‘commodity-fication’ of private profiles taken off the Web.

Laws: The Supreme Court ruled that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”. Attorney General K K Venugopal had argued that “the right of privacy may at best be a common law right, but [it was] not a fundamental right guaranteed by the Constitution”. The court said that “infusing a right with a constitutional element” gives it “a sense of immunity from popular opinion and, as its reflection, from legislative annulment”, which a common law right would not have.

Mobile: With India emerging as one of the largest mobile handset markets and Chinese companies being one of its biggest suppliers, the issue of data protection has long been of concern for Indian authorities. The SC’s privacy ruling may force mobile phone companies to tweak data privacy and protection settings.

NATGRID: Conceptualised when P Chidambaram was Home Minister after the 26/11 Mumbai terror attacks, NATGRID seeks to integrate over 25 categories of database from agencies like railways, banks, airlines, credit card companies, immigration, etc., and make it available to law enforcement officers. Following last week’s order, the implementation of the programme could require amendments in several laws to allow sharing and transferring of data on items such as property and bank transaction details.

Online shopping: Buying online leaves electronic footprints that can be aggregated to reach conclusions on the nature of an individual’s food habits, language, health, hobbies, sexual preferences, friendships, ways of dressing, etc. Companies can dive into this reservoir of private data on online buying to target advertising at individuals. But following the privacy verdict, e-commerce companies will have to remain cautious about sharing data aimed at targeted advertising.

Profiling: Every person willingly shares some bit of information about herself to particular authorities, companies, or institutions. But when this information is no longer confined to silos, and an authority or company can create interlinks between the separate islands of information, they can assess the personality of the individual in question. European Union regulations in 2016 called it profiling, defining it as “automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences”.

Questions: The Supreme Court judgment has clearly established the vertical application of the right to privacy against the state. However, its horizontal application, against non-state actors, has been left open to case-by-case adjudication in the future.

Reproductive rights: The Supreme Court counts reproductive rights as inherent to the right to life and liberty. Like privacy, this right is not mentioned in the text of the Constitution, but is a penumbral right — one derived from rights mentioned in the text. In 2009, the then Chief Justice of India K G Balakrishnan wrote, “There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21…” But more importantly, Balakrishnan noted that a woman’s reproductive choices also included the right to “abstain from procreating”. The Supreme Court used the jurisprudence on reproductive rights in India and the United States to draw parallels with privacy as a penumbral right.

Sexual identity: “The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual,” said the SC. It said its 2013 judgment, which re-instated Section 377 IPC, effectively criminalising homosexuality, struck a “discordant note” on the jurisprudence of privacy. LGBT rights, the court said, “inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination”.

Terror: The seamless structure and anonymity provided by the Internet has emerged as a new space for terrorists to exploit — in the form of indoctrination, cyber attacks on financial systems, etc. Justice Chandrachud underscored the “legitimate interest” of the state to monitor the Internet against terrorists, subject to just, fair and reasonable restrictions against encroachment into privacy.

Unauthorised taps: Though guidelines on phone taps are already in place, the privacy ruling has further reinforced protections against unauthorised surveillance.

Violence: Justice Chandrachud observed that “privacy must not be utilised as a cover to conceal and assert patriarchal mindsets”.

Western import: The judgment demolished the argument that privacy is an elitist construct imported from western countries. It “categorically rejected” the premise that the poor in the third world were more concerned with “economic well-being”, and “privacy is a privilege for the few”. Justice Chandrachud asserted that “every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects.”

X-Factor: While adjudicating on the limited question of privacy being a fundamental right, the Bench clearly also had in mind the likely evolution of ideas of privacy as technologies matured. Justice Chandrachud referred to “wearable devices” and the vast amount of data involuntarily generated by its users that could compromise privacy. Along with the evolution of new age technologies — artificial intelligence, virtual reality, augmented reality etc. — will come new challenges to the protection of privacy. The judgment indicates that it is alive to future developments as well.

Youth: The judgment underlined that the privacy of the socio-economically underprivileged was as important as that of anyone else — but given the extent of the adoption and reliance on new technologies by the younger generation, and in many cases their refusal to be straitjacketed within majoritarian frameworks, the issue holds crucial importance for this demographic as well. The ruling is also likely to be their bulwark against non-state actors as and when the privacy discourse gains critical mass among youth hooked to social media and e-commerce.

Zero tolerance: By making privacy a fundamental right by a 9-0 verdict, SC has immunised it against attacks by simple legislative majorities.

What the judgment means for Aadhaar, its constitutionality

A NINE-judge Bench of the Supreme Court is rare; a unanimous decision by such a Bench, rarer. This decision is historic not only because it has ruled that privacy is a fundamental right, but also because it has deepened our understanding of fundamental rights as inalienable inherent rights in every human being. What impact will the verdict have on the Aadhaar case, which provided the context for this important moment in Indian constitutional history?

Portions of the judgment that deal with data protection and privacy say that any collection of personal information that would impact privacy must have a law to back it. A corollary to this proposition is that all actions of the Unique Identification Authority of India (UIDAI) prior to the coming into force of the 2016 Aadhaar Act are of suspect constitutionality. A further question arises on what can be done about such data that was collected without a legal basis.

Also, the very idea of a boundless general purpose identification database is constitutionally suspect following the unequivocal declaration of privacy as a fundamental right, and the drawing up of the conditions of restricting that right in as narrow a manner as the judgment has done. This ruling has opened up the field for more concrete challenges to various architectural and implementational aspects of Aadhaar, and its impact on privacy — such as the mandatory collection of biometric data, deployment of private players for collection of information, online authentication and the extent of authentication data storage, and the possibility of data convergence and profiling as a result of Aadhaar-seeding of various databases.

Apart from these issues linked directly with the right to privacy, there are a number of other issues on the Aadhaar project that the court is yet to hear and decide. Some of these, not necessarily in order of importance, are:

* Whether the Aadhaar Act should have been, and could have been, passed as  a Money Bill, bypassing Rajya Sabha;
* The issue of Section 7 of the Aadhaar Act that empowers governments to make Aadhaar mandatory for subsidies, services and benefits drawn directly from the Consolidated Fund of India being an unconscionable bargain, and whether the state can specify conditions that infringe on people’s fundamental rights such as privacy and bodily integrity to enable them to access their legal rights and entitlements;
* The issue of decision making on substantive questions such as identity through untested, unreliable technology that irreversibly tilts the scales of control in favour of the state and away from the control of the citizen;
* Above all, the issue of the fundamental nature of the relationship between the state and the citizen in creating a national biometric database with identity reduced to a mere number, and the right to identity being supplanted with the power to identify by the state.

Following the resolution of the question of whether the right to privacy is a fundamental right, the decks are now clear for a smaller Bench of the Supreme Court to hear and decide on these questions at the earliest, keeping in mind that this is litigation that began almost six years ago.

Implications for privacy in tech use?

Information technology is not only punctuating, but is virtually taking over our lives today. Technology has made many hitherto impossible things possible, many improbable things certain, many processes so advanced that they are “indistinguishable from magic”, as sci-fi writer Arthur C Clarke put it. The methods by which a person’s legal rights may be infringed have undergone similar transformation. Infringements of privacy by state and non-state actors is a real danger of our times, and it required strong articulation as a fundamental right by the nation’s highest constitutional court.

Besides privacy, other legal problems, too, arise from the widespread use of technology. Take the increasing use of technology and algorithms for decision making — the use of proprietary biometric matching algorithms to determine substantive legal status of identity in Aadhaar is one example.

Can a state authority delegate essential decision making that determines and affects the rights of other parties to the device of technology? If so, what would be the parameters to make sure it is just, and not arbitrary? Merely because it is technology, would there be a legal presumption against arbitrariness? Would such a presumption be rebuttable or irrebuttable? If rebuttable, how can one go about rebutting such a presumption? Can it be presumed to be non-discriminatory? There are instances, for example, where facial recognition algorithms appear to work better for Caucasian faces than for coloured faces.

Given the asymmetry of information on the working of the technology — where, in most cases, the algorithm developer and the technology provider know more about the working of the technical system than the person whose interests are affected by it — on whom should the burden of proof lie if questions of arbitrariness or discrimination are raised in the working of the algorithm? If technology-assisted decision making must be provably non-arbitrary and non-discriminatory, what is the standard of proof that is acceptable for various applications?

Even if we were to assume that technology may not be used as the final word, and it may only be technology-assisted human decision making in the matter of, say, criminal sentencing where a predictive algorithm is used to determine the appropriate sentence, what would be the legal principles in dealing with the bias that such technical assistance provides to the final deciding authority?

This is by no means an exhaustive list.

It must be remembered that technology gives a sense of benevolent determinism to many of our life’s problems, which may, however, turn out to be false. As methods of incursion into our rights become more sophisticated, so should our means of asserting those rights and warding off the incursions.

This landmark Supreme Court judgment has broadly drawn the parameters for technology-related state action that impacts privacy rights. However, jurisprudence in relation to other rights and other kinds of incursions will similarly need to develop to answer questions of the kind mentioned above.

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