Supreme Court hearing Aadhaar petitions: What happens if there is no fundamental right to privacy?

Arguments on whether the right to privacy is a fundamental right are, at the time of writing this piece, being heard by a nine-judge Constitution bench in the Supreme Court. The outcome of this all important case will be binding for a long time to come. So what happens if privacy is not recognised as a fundamental right?

To understand this, one needs to look at the right to privacy arguments in the present. The violation of the right to privacy comprises the majority of the arguments against Aadhaar, against WhatsApp’s privacy policy, and Section 139AA of the Income Tax Act, among others. With this right now in question before the Supreme Court, a ruling that there is no constitutionally recognised right to privacy will leave very few alternatives for protection.

Aadhaar

Representative image. AFP

Representative image. AFP

If a fundamental right to privacy is not recognised, arguments against Aadhaar will have to turn to violation of other fundamental rights independent of the right to privacy. As seen in outcome of the Aadhaar-PAN judgment, this is a very difficult job. Arguments directly on the violation of Article 21, without relating to privacy, may continue.

Without a constitutional right of protection, existing legal rights to privacy will have to be turned to. This includes Section 43A and Section 72A of the Information Technology Act and the IT Sensitive Personal Data Rules, 2011. In the case of Aadhaar, while the UIDAI is a ‘body corporate’ under Section 11 of the Aadhaar Act, thus making Section 43A and the IT Sensitive Personal Data Rules applicable to it, the relief is limited. Under this section, only a deliberate disclosure of information resulting is monetary harm to the victim is punishable. Acts like violating bodily integrity, the threat to surveillance, the lack of safeguards for the data, etc. are not protected under these laws.

Alternatives are the newly issued General Guidelines for Securing Identity Information and the provisions under the Aadhaar Act itself. As discussed by several privacy advocates previously, these provisions are completely inadequate.

WhatsApp

Even in the WhatsApp case, lack of a fundamental right to privacy as a basis of argument will mean that the violation of other fundamental rights, such as the right to freedom of speech, will have to be turned to. If these fail, the only hope left will be for a legal, general right to privacy being recognised, whether by the courts or through enactment of laws by the government. The IT Act and its rules have proven to be inadequate to curb the privacy related actions of such companies. While a comprehensive privacy law can succeed, it will have to be seen how soon this will be enacted.

Section 139AA

In the case of the Aadhaar-PAN judgment, this was subject to the recognition of a fundamental right to privacy. Failing this, alternative arguments, such as the right to bodily integrity and surveillance as a part of Article 21 will have to be proved. If these fail, then the Aadhaar-PAN judgment will become binding, and the stay on the proviso to Section 139AA(2) will be removed.

The power of a fundamental right

A fundamental right constitutes the most basic and critical rights of an individual which are guaranteed by the Constitution. These are fundamental principles which the state must abide by, be it through their actions or their regulations. For any violation of a fundamental right, by the state’s action or through a new law, we have the right to approach the Supreme Court or high courts directly (through writ petitions). Not only the state, but also a private body performing a public duty can be taken to court for this.

The Aadhaar-PAN judgement given last month also brought the importance of having a recognised fundamental right into focus. Here, the Supreme Court pointed to its limited powers of judicial review of a law, i.e., a law can be questioned on two grounds — that it was outside the power of the state to enact the law (the State/Union/Concurrent List), or that it violated fundamental rights. Based on this, for a law to be reviewed by the courts, a violation of a fundamental right has to be shown.

The power of a fundamental right can also be seen through their enforcement by the judiciary, as seen in landmark cases. Examples are the striking down of Section 66A of the Information Technology Act, 2000 for violating the right to freedom of speech in Shreya Singhal vs UoI, and the recognition of women’s right against sexual harassment at the work place under Article 21 in Vishakha vs State of Rajasthan. In PUCL vs Union of India, restrictions were put on telephone tapping, while recognising the right to privacy under Article 21, and thereby, the need for proper procedural safeguards.

Narrower protection from legal rights on future laws

A legal right simply does not have the same standing as a fundamental right. For violation of a legal right, the right to approach the Supreme Court/high court directly does not exist. Turning to laws that are enacted, it is possible to have simultaneously a law like Aadhaar which ‘legally’ invades privacy, alongside any future law which may grant a general right to privacy. As a fundamental right, on the other hand, all laws passed by the state, including Aadhaar, cannot violate privacy, as they risk becoming void on the grounds of unconstitutionality.

One can look at the removal of the right to property as a fundamental right, and its subsequent sanctioning as a legal right. A legal right can be curtailed by a law, meaning that it is possible for the state to pass laws which legally deprive a person of his property.

Awaiting the outcome of the Constitutional bench

The right to privacy as a fundamental right will grant protection that is much broader than a legal right can possible give. In the digital age, the age of the internet of things, where an individual’s every action, every word, can be tracked by not just the state, but anyone, privacy is critical for the enjoyment of any other liberty. It is hoped that the Constitutional bench will grant to Indians a fundamental right to privacy.


Published Date: Jul 19, 2017 03:58 pm | Updated Date: Jul 19, 2017 03:58 pm


Also See