Privacy of Citizen is ensured as Fundamental Freedom in Constitution - Supreme Court rules

Privacy of Citizen is ensured as Fundamental Freedom in Constitution - Supreme Court rules

Privacy of Citizen is ensured as Fundamental Freedom in Constitution - Supreme Court rules

By / World News / Thursday, 24 August 2017 00:00

In a big blow to Modi Government's efforts to bring bills after bills which are compromising on Citizen privacy, Supreme Court 9 member bench has delivered a verdict today.

The right to privacy is intrinsic to life and liberty, thus coming under Article 21, and comes under the various fundamental freedoms in PART III

History of Hitler

and State Surveillance 

As people consider the implications of the mass surveillance of their emails, here's an interesting historic parallel.

In 1933, Hitler demanded that Germany's president, Hindenburg, sign what became known as the Reichstag fire decree (Reichstagsbrandverordnung).

The decree is considered by historians to be one of the key steps in the establishment of a one-party Nazi state in Germany.

It nullified many of the key civil liberties of German citizens, and it was used as the legal basis to imprison anyone considered to be opponents of the Nazis.

It was also aimed at suppressing publications that were considered unfriendly to the Nazi cause.

According to Ferdinand Schlingensiepen's biography of one of Hitler's leading critics, Dietrich Bonhoeffer*, the decree meant that "the right to privacy of communication by mail or telephone no longer existed."

*Ferdinand Schlingensiepen, Dietrich Bonhoeffer 1906–1945: martyr, thinker, man of resistance (London, T&T Clarke, 2010) p.119

of the Indian Constitution.

A nine-judge Constitution Bench of the Supreme Court on August 24, 2017 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.

Reading out the common conclusion arrived at by the nine judges on the Bench, Chief Justice of India J.S. Khehar said the court has overruled its own eight-judge Bench and six-judge Bench judgments of M.P. Sharma and Kharak Singh cases delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution.

The Centre had argued that privacy is a common law right.

The right to privacy: Explained

The nine-judge Bench was composed of Chief Justice J.S. Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, D.Y. Chandrachud and Sanjay Kishan Kaul. 

The Bench was formed as two judgments of the Supreme Court — the 1954 M.P. Sharma case verdict pronounced by an eight-judge Bench shortly after the Indian Constitution came into force and 1965 Kharak Singh case verdict by a six-judge Bench — had dominated the judicial dialogue on privacy since Independence. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. To overcome these two precedents, a numerically superior Bench of nine judges was required.

A five-judge Bench led by Chief Justice Khehar had referred the question whether privacy is a fundamental right or not to the nine-judge BenThe nine-judge Bench’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect. The judgment, if it declares privacy as a fundamental right, would finally reconcile our laws with the spirit of Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, which legally protects persons against the “arbitrary interference” with one’s privacy, family, home, correspondence, honour and reputation.

The judgment will have a crucial bearing on the government’s Aadhaar scheme which 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 had argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage. 

The government had countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling State interests and is not an absolute right.

It had reasoned that collection and use of personal data of citizens for Aadhaar — now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights. The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering and terror funding.

The apprehension expressed by the Supreme Court about collection and use of data was the risk of personal information falling in the hands of private players and service providers.

Both government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties.

National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping  involve collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.

The Supreme Court had repeatedly asked the government whether it has plans for setting up a “robust data protection mechanism”. The government informed the Bench a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, has already been constituted on July 31, 2017 to identify “key data protection issues” and suggest a draft data protection Bill.


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