Privacy as fundamental right: What changes for Indians beyond Aadhaar
It's the new Magna Carta of rights for citizens in the modern democratic state. A nine-judge Constitution bench has upheld privacy as a fundamental right emanating from the right to life under the Indian Constitution. In a unanimous verdict, the Supreme Court has rejected all arguments of the Union government that privacy has limited scope in countries like India. The top court's ruling will have an impact beyond Aadhaar. Issues pertaining to homosexuality, reproductive rights of women, the privacy policy of leading service providers like Google and Facebook, et al will now come under the scanner.
The buck stops here
Interestingly, law minister Ravi Shankar Prasad has welcomed the verdict. It's ironic that the minister says that the government supports right to privacy as a fundamental right.
One can't help but go back to the arguments of the Centre in these past four years. The Centre questioned the status of privacy and its existence, it argued that citizens don't have an absolute right over their own bodies, it even told the Supreme Court that in countries like India with mass poverty, privacy can be given a go by. But now the writing is on the wall: citizens of India have an overarching right against the State and also the new quasi-government multinational organisations.
Bringing back privacy to life - and its implications
Not just the substance of the judgment but the judges' choice of words too is heartening. The court said: "I don't think that anybody would like to be told by the State what they should eat or how they should dress or whom they should be associated with."
The court also recounts how Edward Snowden's disclosures on mass surveillance by the state shook the entire world. The contours of the judgment restrict the State from mass surveillance and hold that the state's actions must be reasonable and proportionate to the aims sought.
The debate on sexuality too found a breather of sorts with the Supreme Court judgment directly criticising its earlier order, which restored Section 377 and left it to the legislature to decriminalise homosexuality.
Without mincing words, the court said: "Disagree with the Supreme Court finding that only a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and thus, there cannot be any basis for declaring the Section ultra virus of provisions of Articles 14, 15 and 21 of the Constitution. Right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to Constitutional rights. Even if LGBT is a fraction of population their rights matter. Courts cannot take majoritarian view."
With the curative petition in the case pending before the Supreme Court, there is a glimmer of hope for the LGBT community.
Another implication is on the pending Data Protection Law for which the government has formed a special committee: as far as the pending battle on Aadhaar is concerned, it will be a tough fight for the government. The court has left privacy undefined and all pervasive in part three of the Constitution. Though the government has welcomed the judgment, when the Aadhaar matter comes up before the five-judge bench of the Supreme Court, various provisions of the Aadhaar act would be under the scanner.
The standards are quite high for the Centre as far as questions of surveillance and data protection are concerned.
The information technology laws in India are in a nascent stage. In the digital age, where most people share all of their lives on Facebook, Twitter, WhatsApp and over email, the need for data protection is intrinsic to every aspect of one's life. In legal terms, it is as basic as the fundamental right to life.
With the ruling of the Supreme Court, WhatsApp, Facebook and even companies like Google face fresh scrutiny of their privacy policies.
Currently, WhatsApp is facing a legal challenge before the Supreme Court for allegedly sharing chats with Facebook.
Its new privacy policy has been much criticised for not giving people real choices. Facebook India has also come forward to clarify to the Supreme Court that it satisfies all legal requirements in the country. The case pertaining to WhatsApp raises broader concerns for most internet companies like Yahoo, Google et al.
In the last hearing of the WhatsApp case, it was even argued that all these companies should be made a party and the privacy judgment will impact each of them. Can your chat history be saved? Can your browsing history be shared?
What is the extent to which people can be prosecuted for bank frauds, email hacking et al? Citizen's privacy will be a strong determining factor in these cases.
It is settled now that you and I have a fundamental right to our bodies, to what we eat and how we dress. Our right goes beyond this: today's judgment also tells the State its limits, areas which are protected, and also sets the contours of how big tech giants should deal with our information floating online.
This judgment would be remembered — and hailed — for upholding the rights of ordinary citizens like you and I against the might of the State; especially for echoing the concerns of the LGBT community and of women over their bodies.