The Right to Privacy

EVER SINCE THE introduction of Aadhaar as a basic identity number for individuals in India, activists have vigorously campaigned against it, claiming that it deprives citizens of their right to privacy. It is another matter that no such right, real or implied, exists under the Constitution.

The matter has now reached the highest levels of judicial decision-making. A nine-judge bench will adjudicate on whether the right to privacy is a fundamental right. This subsidiary issue has been referred to it by the earlier one that is hearing the challenge against Aadhaar.

Historically, the apex court has not entertained this claim. In two early cases, dating to 1954 and 1962, it expressly ruled out privacy as a fundamental right. This, even as it agreed that privacy was a common-law right.

There is little doubt on whether privacy should be a legal right. No civilised country will rule it out. But emplacing it along other fundamental rights is a different matter. If that happens, the constraints on the state to tackle a wide array of problems—from running the welfare system to protecting citizens from harm— will be under a question mark.

For example, take Aadhaar. In recent years, the Government has had some success in limiting leaks and thefts from the sprawling welfare system that results in losses running into tens of thousands of crore. There are other uses of issuing biometric identities to people who live in India: checking crime and terrorism, for example.

The right to life requires the state to protect citizens from bodily harm. It requires no elaboration that this is why the police are around. But if privacy is enshrined as a fundamental right, sooner or later, it will clash with parts of the right to life that equip the state to fight the menace of terrorism. In a country of 1.3 billion people, taking away the tools that enable protection is unconscionable.

The argument of privacy activists is quaint. In this age, the use of everyday tools—from email to credit cards— has diluted privacy to the point that it is almost a chimera in the private domain. It is not clear what animus these activists have against the state in this respect, given that they cannot bring back complete privacy to people’s lives in circumstances where private companies routinely track their spending and other behavioural habits.

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