A Constitution Bench of the SC will pronounce whether the right to privacy is a fundamental right or not. A three-judge division bench hearing the constitutional validity of the Aadhaar project referred the matter to the Constitution bench on the request of the attorney-general, Mukul Rohatgi. Earlier, his argument before the SC in defence of Aadhaar, that the right to privacy is not a fundamental right, triggered a storm. Adding grist to the mill, the Centre banned 857 porn sites, only to backtrack when the nation grizzled against it as an invasion of privacy. Realising its folly, the government told the SC that it “does not intend to become a moral police.”
When the AG pleaded before court that right to privacy is not a fundamental right, he was basing his contention on the SC’s judgements in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of UP (1962), where the court held that “...when the Constitution makers have thought it fit not to subject such regulation to constitutional limitations by recognition of fundamental right to privacy, we have no justification to import it...”
It appears that the SC was not aware of the debate on the issue in the Constituent Assembly. The Congress’ Kazi Karimuddin had moved an amendment in the Constituent Assembly on the lines of the Fourth Amendment of the US Constitution, but it was defeated. However, Dr B.R. Ambedkar supported it: “I think it is a useful provision and may find a place in our Constitution.” Besides, the Preamble also talks of “assuring the dignity of the individual”.
In Kharak Singh’s case, Justice Subba Rao wrote in his dissenting judgement that right to privacy is an essential ingredient of liberty. Later, the SC discarded the doctrine of strict interpretation of fundamental rights, and gave an expansive interpretation. In Govind v. State of MP (1975), the SC held that “many of the fundamental rights of citizens can be described as contributing to privacy”. In subsequent cases, the right to dignity was held as a non-negotiable right. It is evident that the right to dignity is hollow without the right to privacy.
Right to privacy, thus, is an inalienable part of right to personal liberty guaranteed by Article 21 of the Constitution but it’s not explicitly mentioned as a fundamental right. Most common law Constitutions do not bequeath right to privacy to their citizens. In the US, courts did not protect this right until the fag end of the 19th century. This right was recognised when Charles Warren and Louis Brandeis published their article, The Right To Privacy, in the Harvard Law Review (1890). Though hundreds of cases related to right to privacy came to the courts, the first higher American court to deal with this right was a New York appellate court in Roberson v. Rochester Folding Box Co. (1902). Chief Justice Parker ruled that the defendants had invaded what is called a “right to privacy”, in other words, the right to be left alone.
There is no consensus over definition of privacy. For Professor Michael A. Weinstein, privacy is a psychological state, a condition of “being apart from others.”
Ancient Indian law-givers declared “Sarve sve sve grihe raja” (Every man is a king in his own house). Indian traditions have always respected privacy, and Indian courts were ahead of British and US courts in protecting this right. In 1888, Chief Justice John Edge of the Allahabad HC observed, “In my opinion, the fact that there is no such custom of privacy known to the law of England can have no bearing on the question whether there can be Indian custom of privacy valid in law.”
Advocating the right to privacy for Britishers, Professor Percy H. Winfield appealed to the House of Commons in 1931 to follow the Indian law. Section 509 of the IPC, 1860, makes it a crime to intrude into the privacy of a woman. It was not imported from England, but just a long tradition in India.
Yet, the government is ready to introduce the DNA Profiling Bill in Parliament soon. The bill will give teeth to criminal investigations as it will allow the use of forensic science to identify a person using the unique signature found in his/her DNA. But there is no safeguard against the misuse of data collected under the bill. A group of experts headed by former CJ of the Delhi HC, A.P. Shah, recommended a framework for a Privacy Act which would recognise all dimensions of the right to privacy and address concerns about data safety, protection from interception and bodily privacy.
The SC has, in its interim order, directed that the Aadhaar number can be used for PDS and LPG subsidy, but is not mandatory for any other purpose. Thus reiterating that safeguards against the misuse of biometric details of people are necessary before they are collected.
The writer is a senior TV journalist and author
