What is privacy? What is information privacy? What is right to privacy?
The Oxford dictionary defines privacy as “a state in which one is not observed or disturbed by other people” or “the state of being free from public attention”. So, privacy can also be defined as the ability of an individual to be left alone and express themselves selectively.
The IAPP defines information privacy as “the right to have some control over how your personal information is collected and used”.
Right to privacy refers to a legal framework that provides individuals a legal right to protect their or their data’s privacy.
Is right to privacy a globally recognised right?
Article 12 of the Universal Declaration of Human Rights, 1948, and Article 17 of the International Covenant on Civil and Political Rights (ICCPR), 1966, legally protect persons against “arbitrary interference” with their privacy, family, home, correspondence, honour and reputation. India became a signatory to this on April 10, 1979. The European Union also recognises the respect for private and family life, home and communications. In Europe, this is covered by the Data Protection Directive, which defines how information can be processed and used.
Just like the Indian constitution, the US constitution also does not contain an expressly stated right to privacy. But the US Supreme Court has interpreted several amendments to argue that such a right does exist.
What question will the Supreme Court seek to answer in its verdict on 24 August, 2017?
In the challenges to Aadhaar, as the petitioners argued that Aadhaar would breach privacy, it became essential for the Supreme Court to decide whether Right to Privacy is a fundamental right or not. The 9-judge bench that will deliver its verdict will only decide whether Indian citizens have a fundamental right to privacy or not.
How did this case come to court?
In other cases challenging the implementation of the Aadhaar scheme by the Union government, various petitioners had argued before the Supreme Court that it was an invasion of an individual’s privacy as biometric data were collected. The government argued that privacy was not a fundamental right and it became necessary for the Supreme Court to decide whether privacy was a fundamental right or not. Hence, a separate bench had to be formed.
But why a 9-judge bench?
Previous cases that decided the existing status of privacy in India had been decided by 6- and 8-judge benches. These were conflicting judgments and in order to overcome the precedent set by these cases a 9-judge bench’s formation was necessary.
Will this verdict by the 9-judge bench also decide the Aadhaar cases?
No, it will not. This constitutional bench, with 9 judges on it, came about only to interpret whether the Indian constitution provides for a fundamental right to privacy or not. Its verdict will have bearing on other cases, which will be decided separately.
What will be the impact of this case?
The verdict of the Supreme Court in the privacy case will have far-reaching implications. If the SC upholds the right to privacy, it will influence the rollout of Aadhaar in India. In its 2015 stay, the SC had argued that laid certain conditions for the government to fulfil. These were:
1. Nobody would be deprived of welfare benefits if they did not enrol themselves under Aadhaar
2. Signing up for Aadhaar was going to be voluntary and not mandatory
3. The government would advertise informing the public that Aadhaar was a voluntary scheme
4. That it be extended only to three services (this was later raised to five services by the SC)
Despite the SC limiting implementation of Aadhaar to just five services, the Union government expanded its use to multiple services and this led to contempt of court cases being filed in the SC.
Despite the SC limiting implementation of Aadhaar to just five services, the Union government expanded its use to multiple services and this led to contempt of court cases being filed in the SC.
If the court rules that privacy is a fundamental right, it may have an effect on the collection of data by the government and even private companies. It may lead to the formulation of a legal framework for protection of individual data as well.
What has the Union government argued in the Supreme Court?
The government argued that privacy was the concern of an 'elite view', that right to privacy was not expressly stated in the Indian constitution. The Attorney General argued that this was a deliberate omission. Additional Solicitor General Tushar Mehta, representing UIDAI, argued that the right to privacy might be considered a fundamental right, but all aspects of privacy could not be put under the fundamental rights category.
Four states, West Bengal, Karnataka, Punjab, Himachal Pradesh and one Union Territory, Puducherry, have argued in the SC that they support a constitutional right to privacy.
The lawyer representing these states and the UT, Kapil Sibal, argued that “the right to privacy cannot be absolute but the court needs to strike a balance between the rights of the state and citizens on the one hand and the rights of citizens and non-state actors on the other”.
What are the petitioners arguing against it?
One of the lawyers representing the petitioners, Shyam Divan, argued “my body belongs to me, invasions of my bodily integrity can only be allowed under a totalitarian regime”.
They argued that without privacy and a private life, no person could be meaningfully free. A world without privacy is a world with unchecked surveillance, and constant surveillance is antithetical to human dignity.
To read more about how the Supreme Court has viewed privacy as a right over the years, read this Business Standard timeline
To read more about how the Supreme Court has viewed privacy as a right over the years, read this Business Standard timeline