Notebook

A New Fundamental Right

A New Fundamental Right
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In its judgment on privacy, the apex court strikes a delicate balance

ON AUGUST 23RD, a nine-judge bench of India’s Supreme Court declared privacy a fundamental right, one that is at par with the original rights enshrined in the Constitution. Coming just days before Chief Justice JS Khehar demits office, the judgment brings to a close a high-voltage debate over the issue which had fears being expressed over the reach of the Government and the dangers of political oppression.

The judgment lays to rest all such apprehensions. If anything, the majority opinion—penned by Justice Dhananjaya Chandrachud and concurred with by Chief Justice Khehar and Justices RK Agrawal and S Abdul Nazeer—addresses the concerns of the Government as well. In bare-bone terms, the court has declared privacy to be a fundamental right and overruled two early cases— dating back to 1954 and 1962—in which court rulings had denied that the Constitution guarantees one’s right to privacy.

In the debate leading up to the judgment, a number of issues were hotly contested. How, for example, to balance the rights of individuals with the imperatives of governance? The latter concern includes the issue of legitimate surveillance for national security purposes and of a unique identity system for citizens so that government benefits reach those they are intended for. The latter matter is part of another case that is being heard by the court. As it happens, the privacy case was the by-product of a legal challenge to Aadhaar-UID. The observations of the court on privacy as a basic right offer hints of what the Government should do to smoothen the implementation of Aadhaar.

All these issues have been addressed and elaborated upon by the apex court. It has ruled against the argument that the provision of benefits to the poor requires a denial of people’s right to privacy. It had been contended that this right is elitist and that the poor do not care for privacy. The majority opinion holds that, ‘Civil and political rights and socio-economic rights do not exist in a state of antagonism. The conditions necessary for realizing or fulfilling socio-economic rights do not postulate the subversion of political freedom.’

One side, largely of liberal persuasion, argued that Aadhaar not only violates individual privacy, but might also fail to serve the purpose of limiting corruption in the welfare schemes run by the Government. The court has put paid this claim: ‘Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalized sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilization of resources should not be siphoned away for extraneous purposes.’

The key to this balancing act of the apex court rests on the creation of a data protection ecosystem. Here, the Judiciary and the Government are on the same page. A committee led by Justice (retired) BN Srikrishna is already looking into it.

The court has upheld the right to privacy and also addressed the concerns of those who govern India

What makes privacy a somewhat exceptional right as compared with other fundamental rights is that the danger of its violation stems not only from government agencies such as the police and taxation authorities; there is a far more ubiquitous threat posed by private companies that use data in ways that are rapidly evolving. The danger to liberty that data mining and the profiling of individuals—based on what they eat, read and consume in general, for example—poses is not just real but a threat that emanates from players that are only weakly accountable to the Indian people (through regulatory bodies). Here, again, the court has seized upon the problem: ‘The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.’

In substantive terms, these issues round off all the concerns that were highlighted in the original petition. There are, however, other matters that make the judgment truly remarkable. These don’t concern the issue of privacy directly, but have been used by the court to arrive at its decision. On their own, they hint at the evolution of the Judiciary in India and have a bearing on the balance between the courts and other wings of the state.

One of these is apparent even on a cursory reading of the judgment. The court has finally laid to rest the idea of ‘originalism’ in the Indian Constitution. Originalism, as an idea and a doctrine, holds that while interpreting the text of such a document, the original intention of its framers must be followed closely. If this were adhered to, there would be no fundamental right to privacy. The majority opinion rules this out thus: ‘The Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future. Nor can judges foresee every challenge and contingency which may arise in the future. This is particularly of relevance in an age where technology reshapes our fundamental understanding of information, knowledge and human relationships that was unknown even in the recent past.’

This is a tricky area. The original Article 21, which deals with the right to life and liberty, has been extensively elaborated over time to add various other rights, including the right to livelihood, and now, to privacy. This has led to the charge that the Judiciary has been creating new rights that do not exist in the Constitution. The Supreme Court denies this. ‘Neither is this an exercise in constitutional amendment brought about by judicial decision nor does it result in the creation of a new set of fundamental rights. The exercise has been one of interpreting existing rights guaranteed by the Constitution and while understanding the core of those rights, to define the ambit of what the right comprehends.’

Privacy is an issue that is complex and evolving and it is hard to believe that the last word on it has been written. But the country’s apex court has displayed acuity and sensitivity in addressing it. By their nature, fundamental rights are not absolute; they are subject to reasonable limitations. As the court puts it: ‘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.’ This is all that was asked for.