The Supreme Court of India (SCI)in a historic judgment has held the right to privacy as an inherent fundamental right, read into Article 21 of the Indian Constitution.
Article 21 Guarantees right to life and liberty, and the Supreme Court’s latest verdict has said the ‘right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.‘
While the judgment is being hailed as a historic one, it will also have massive implication for other cases which are currently being heard in the Supreme Court. This includes the Aadhaar case, the WhatsApp privacy case, still being heard in the Supreme Court. In the judgment, the Court also talks about informational privacy and what it means in the age of technology and a digital world.
The judgment reads, “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well.” So the Supreme Court judgment has recognised that when it comes to privacy, the state is not the only institution which poses danger, rather there can be “non-state actors” too that need to be kept in consideration. This is something privacy activists in India have been highlighting with the rise of social networks like Facebook, and companies like Google, Microsoft, etc which have a strong control over user data.
The judgment adds the interpretation of the Constitution can’t be “frozen” in time, and technological changes have created new concerns. “The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present,” it reads.
It goes on to urge the Indian government to consider and create a “robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state.” Even when the Supreme Court judgment talks about keeping digital privacy intact, it is also taking into consideration the ideas of “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.”
Further, the court says that when it comes to these issues, it puts the ball in the court of the government. The policy has to be considered by the Union government, says the judgment pointing out there is already a Committee in place headed by Justice B N Srikrishna, former Judge of the Supreme Court, which is looking at the issue of a data protection regime.
So what will this judgment mean to the WhatsApp case?
While that can’t be predicted right now, the WhatsApp case also deals with issue of user privacy. Currently, a five-judge constitution bench is listening to the matter, where the 2016 privacy policy change of WhatsApp is up for discussion. In 2017, WhatsApp announced changes for its privacy policy and said it will share data with Facebook, which is its parent company. The case will have a major implication in India since, WhatsApp is the most popular app in the country with 200 million users alone.
The government has already told the court it is working on a data protection framework in regard to the case. WhatsApp on its part insists that its app doesn’t violate user privacy, and since the messages are end-to-end encrypted, they can’t be read by anyone other than the sender and recipient, and this includes Facebook and WhatsApp.
What will this mean for the Aadhaar case?
The current verdict is not on the other case being heard by a five-judge bench of the Supreme Court on whether the government scheming of linking Aadhaar for all transactions is an infringement of privacy.
The nine-judge verdict is on a petition filed by retired Justice K S Puttaswamy and others, which challenged the collection of biometric data by the government of India under the Aadhaar scheme as being in violation of right to privacy under “Article 21 of the Constitution of India while other petitioners assert that such a right emanates not only from Article 21 but also from various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.” The petition was first filed in 2012.
While this verdict settles the issue that privacy is indeed a fundamental right as read into the Constitution, the issue of Aadhaar being made compulsory for various schemes is yet to be examined and decided by the Court. However, today’s verdict will also end up having an impact on that verdict
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