Is Right to Privacy a Fundamental Right under the Indian Constitutional scheme and is UIDAI violative of Individual’s Right to Privacy?
Abstract
The essay is divided into two parts first part provides an answer to the question is Right to Privacy a Fundamental right and the second part deals with the question is UIDAI violative of Individual’s right to privacy. The simple meaning of Privacy is the right to be let alone. However, the word “privacy” has evolved and has gotten a wider meaning. Everyone wants privacy in their life, to have privacy in life is human tendency but in this technological era it’s hard to guarantee the right of privacy. Indian constitution doesn’t explicitly guarantee the right of privacy but many legislations have been passed for securing the privacy right of Individual. The second part of essay covers the answer to the question is UIDAI violative of Individual’s right to privacy. When UIDAI authority was established many controversies came up. The opposition didn’t pass the Aadhaar bill on the ground of privacy. UIDAI is working without any legislative force. The essay encompasses every issue related to the UIDAI and privacy. The main objective of the essay is to make it clear that Right to privacy isn’t a fundamental right under Indian constitution and UIDAI isn’t violative of Individual’s right to privacy.
Introduction:
The Right to Privacy means the right to be let alone; the right of a person to be free from unwarranted publicity and the right to live without undue interference by the government or any private individual in matters with which the public is not concerned. In Black law dictionary Privacy is defined as the right that determines the non-intervention of secret surveillance and the protection of an individual’s information. Its split into 4 categories
1. Physical: An imposition whereby another individual is restricted from experiencing an individual or a situation.
2. Decisional: The imposition of a restriction that is exclusive to an entity.
3. Informational: The prevention of searching for unknown information and
4. Dispositional: The prevention of attempts made to get to know the state of mind of an individual.
Right to privacy is a kind of natural right. No one likes that any unknown person would interfere in one’s life. Human beings want privacy in every aspects of life, a simple example would be people often use incognito mode coz they don’t want search or browsing history. It’s not that the people are engaged in any illicit activity but it’s a human tendency that human beings want privacy in their life. The Indian constitution doesn’t explicitly guarantee the right to privacy. Privacy is considered essential to human existence and personal liberty. Right to privacy isn’t a fundamental right under Indian constitution however many cases came up before the Supreme court of India and the court gave decision by widening the ambit of Article 21 of Indian constitution that guarantees the right to live and personal liberty. Privacy if we go by the simple meaning it means something which a person doesn’t want to share with others. Privacy is inevitable in the modern times but we can’t ignore the crimes. Every individual wants privacy in his life. In every aspect of our life we want privacy. Privacy is a human tendency. Right to privacy is no doubt a human right but in our modern times when the crime rates have gone up so high. It’s indeed difficult to guarantee privacy right. Indian constitution doesn’t guarantee the right to privacy explicitly. Right to privacy means complete isolation of individual, free from any interference by anyone. In modern times complete privacy is not possible. We all are surrounded by cameras, our every move is recorded or scrutinized by someone. So complete privacy is not possible. Government shouldn’t grant the right to privacy but however can make limitations to the extent of interference. Guaranteeing right to privacy would increase the crime rates. Interference shouldn’t be unnecessary. Unique identification authority of India also known as UIDAI was established on 28 January 2009. It’s a centrally authorized authority to collect the demographic and biometric information of residents of India. UIDAI is authorized to give a 12 digit unique number to individual. But critics said that Unique identification authority of India has violated the right to privacy, critics of Aadhaar Scheme want to shut the distribution of Aadhaar number on the privacy ground. They contended that under the UIDAI scheme private companies are involved and they can misuse the biometric information of people. However the issue is whether UIDAI is violative of individual’s right to privacy. The very first thing is that the Indian constitution doesn’t explicitly guarantees the right to privacy. Also Supreme Court passed interim orders stating that Aadhaar isn’t mandatory it’s voluntary. It means those who don’t want to make Aadhaar Cards on privacy issues they are free to do so. Also Supreme Court further in its interim order stated that those who want to block there biometric information, on the ground of privacy or being misused by private companies then they can block their information. Thus UIDAI isn’t violative of individual’s right to privacy.
Evolution of Right to privacy
Privacy in medieval era:
Right to privacy isn’t an alien concept it also existed in the medieval era. The Hindu text Hitopadesh contains the concept of privacy. “It says certain matter like worship, sex and family matter should be protected from disclosure.” The noticeable thing is that the concept of privacy isn’t a modern concept. However with changing times the meaning of privacy has evolved.
Right to privacy in India before Independence:
Right of privacy is a right that an individual has that restricts the interference of state in the private life of individual. This freedom is first expressed in the constitutional bill drawn up in 1985 by the authors. However the identity of authors is dubious. B.G. Tilak who declared “Swaraj is my birth right” and Mrs. Annie Besant who started the Home Rule League in India are said to be the inspiring leaders behind the bill. The text of the bill entitles that “Every citizen has in his house an inviolable asylum”- a simple assertion of the classic English Notion of privacy- for every man his home is his castle and the state could not invade it without lawful and legitimate reason. Another constitutional bill is The Commonwealth of India Bill, 1925. The bill was drawn under the chairmanship of Sir Tej Bahadur Sapru. The bill was framed for the self-governance in India. Gandhi, Bipin Chandra Pal and Mrs. Sarojini Naidu were the members of the committee. The bill acknowledges that “Every person shall have the fundamental right to liberty of person and security of his dwelling and property.” The conception of privacy now extends to personal liberty and security for one’s property apart from one’s home. Three years later in 1928 another committee was framed by the Indian National Congress under the chairmanship of Motilal Nehru. The committee was formed to frame the rules for swaraj (self-rule) in India. The committee placed a negative obligation on the state in relation to privacy. The text of the report is “No person shall be deprived of his liberty nor shall his dwelling or property be entered, sequestered or confiscated save in accordance with the law”. The varied aspects of the conception of privacy acknowledged in Anglo-Saxon jurisprudence is quite evident in this formulation.
Constituent assembly debates on the right to Privacy:
The constituent assembly formed an advisory committee under the chairmanship of Sardar Vallabhbhai Patel. The committee was formed on fundamental rights, Minorities etc. The members of the committee presented various opinion on what fundamental rights guarantees, and they presented various opinion on the right to privacy. Some of the views are as follows
K.T Shah proposed the following formulation in December 1946, “Every citizen of India has and is hereby guaranteed security of his person, papers, property, house or effects against unreasonable searches or seizure”.
K M Munshi’s proposed the following formulation in March 1947, Every Citizen… has the right to the inviolability of his home. Every citizen… has the right to the secrecy of his correspondence. Every person has the rights to be free from the interference in his family relations”.
However, Dr. B.R. Ambedkar presented a more detailed formulation, The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath of affirmation, and particularly describing the place to be searched and the persons or things to be seized”.
However, the committee dropped the idea for the consideration of right to privacy as a fundamental right. Alladi Krishnaswamy Ayyar, a well-known jurist and M Panikkar member of the constituent assembly dissented the propositions of Munshi and Shah and proposed that the right to privacy would hinder the prosecution of the offenders. They were of view that the right to privacy would hamper the enforcement of laws. The committee dropped the idea of considering right to privacy a fundamental right and inscribed in the constitution as Article 300A. However the right to property and protection of the person of the individual were include in separate fundamental rights in Article 19 and 21.
Supreme Court stands on Right to Privacy:
In 1950s and 1960s two constitutional bench ruled out that right to privacy isn’t a fundamental right and the AGI is reported to have cited the judgments of the constitutional bench. The first case of right to privacy came before the Supreme Court in 1954, M. P. Sharma and Others vs Satish Chandra, District Magistrate, Delhi , in this case the petitioner challenged the search warrant issued by the District Magistrate in Delhi to the Delhi Special Police Establishment(DSPE now CBI). The warrant authorized the DSPE to scrutinize the embezzlement of funds by a private company. The DSPE searched 34 places related to the company and they confiscated many documents. The petitioner moved to the Supreme Court and challenged the searches made by the DSPE. The petitioner held that the there is a violation of fundamental right to property guaranteed under the now deleted article 19(1) (f) and the right to non-self-incrimination guaranteed by Article 20(3) of the constitution. The bench was headed by chief justice M C Mahajan. The nine judges’ constitutional bench held that the seizures and searches were authorized and lawful. So the court set aside the petition and held that no violation of any fundamental right had taken place. The bench in the verdict gave remarks on privacy “A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.” .Through this decision the apex court acknowledged the factual position of right to privacy that the right to privacy was not listed in the part III of the constitution.
The other case reported by AGI is Kharak Singh v. State of U.P and Ors. In this case the petitioner moved to the Supreme Court challenging the constitutional validity of chapter 20 of the Uttar Pradesh police Regulations and the powers conferred upon police officials by its provisions on the ground that they violate the rights guaranteed to citizen under Articles 19(1)(d) and 21 of the part III of the constitution. In this case the petitioner who was charged for the offence of dacoity but was later let off due to the lack of evidences. U.P police used to frequently visit his house and he had to take permission from the local police if he had to go any village or city. He challenged the restrictions imposed by the U.P Police. The court set aside the petition and held that there is no infringement of Article 19(1)(d). After a few years again a case came before the Supreme CourtGovind v. State of M.P Mathew, J observed that “The right to privacy in any event will necessarily have to go through a process of a case by case development” Right to privacy includes the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.
Recognition of privacy as a human right:
The universal Declaration was adopted by the general Assembly of the United Nations on 10 December 1948. Human rights are the basic inalienable rights, which should be enjoyed by every person, no matter who they are where they live. India signed the Universal Declaration of Human Rights (UDHR) in 1948. Article 12 of universal Declaration of Human Rights declares that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks”. India also acceded the International Covenant on civil and Political Rights (ICCPR) in 1979. Article 17 recognizes privacy but India didn’t declare or reserve about the right to privacy. The protection of Human Rights Act enacted in 1993 recognizes all rights “relating to life, liberty, equality and dignity of the individual guaranteed by the constitution or embodied in the International Covenants such as the ICCPR and enforceable by courts in India as human rights. Thus, the right to privacy which is recognized ICCPR is also enforceable human right in Indian Court. In the case Ram Deo Chauhan @ Rajnath Chauhan v. Bani Kant Das and Ors. The Supreme Court opined that Human Rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. Constitution and legislations of civilized country recognize them since they are so quintessentially part of every human being. NHRC has the jurisdiction to protect if there is violation of any rights which have been guaranteed to a person either by the constitution or under International Covenants.
Privacy Right and Crime:
Indian constitution doesn’t explicitly guarantee the right of privacy. Also in modern times it is not possible to guarantee complete privacy right to an individual. If we assume that if the Indian constitution would guarantee privacy right to an individual, then the crimes rates would rise. Guaranteeing complete privacy right to an individual would forbid the intelligence agency to collect information about suspicious person. As we know about the sleeper cells or sleeper terrorist, they live in the society and carry out terrorist attacks. If the constitution would guarantee privacy right to an individual then it would be hard to trace these criminals. On the other hand it is also necessary to have privacy in life, like we don’t want the interference of any kind in our life and the government is duty bound to secure privacy of the individual. So there is the need that government should be allowed to interfere in one’s life if the interference is necessary it’s for the nation’s security. Also government should not allow the private companies to interfere in one’s private life.
Privacy Law in India:
There is no right specifically focused on personal data protection in India, there are several primary sources of Indian legislation that refer to this right for Indian citizens. The sources are:
1. Article 21:
The Article 21 of Indian Constitution stipulates “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The court held that life doesn’t simply mean the act of breathing. Life means to live life with dignity and comfort. Right to privacy is not explicitly mentioned in the Indian constitution. But the privacy right can be interpreted through Article 21. Privacy is considered vital for living peacefully. However Indian constitution doesn’t guarantee right of Privacy.
2. Indian Contract Act:
The Indian Contract Act basically deals with requiring Indian importers to pay a duty if they are unable to protect data coming in from other countries. The Credit Information Act of 2005, on the other hand,imposes duties on credit information companies and credit institutions for any unauthorized sharing of an individual’s credit information with external sources.
3. Information technology Act 2000
Information technology Act was passed to prevent the crimes in cyberspace, it explicitly states the penalties and punishment for breach of privacy. For instance if a person has altered the data without the prior permission of the owner then he has committed an offence and the punishment for the offence is 3 years of imprisonment. Information technology Act was passed to prevent crimes in cyber space and also states the punishment and penalties for breach of privacy.
Section 43A, which deals with implementation of reasonable security practices for sensitive personal data or information and provides for the compensation of the person affected by wrongful loss or wrongful gain.
Section 72A, which provides for imprisonment for a period up to 3 years and/or a fine up to Rs. 5,00,000 for a person who causes wrongful loss or wrongful gain by disclosing personal information of another person while providing services under the terms of lawful contract.
The new Indian Privacy Law:
Indian government for data privacy passed Information Technology Rules (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) in 2011. The basic objective behind this legislation is it prevent the crimes in cyberspace. A key component of these rules was that any organization who are processing personal information in India requires written consent before undertaking certain activities and must implement reasonable security policies and procedures. The intention of the Indian Government is to enhance the data security and privacy in the country and it feels that this is a crucial step to promote offshoring in India.
Aadhaar and Right to Privacy:
UIDAI is an authority which is authorized by the central government to collect the biometric and demographic database of residents and also provides a 12 digit unique Aadhaar number to the residents of India. However Aadhaar lacks the legislative support. On 23 September 2013, the Supreme Court of India passed an interim order saying that “no person should suffer for not getting Aadhaar”, that means that a person shouldn’t be deprived of any benefit if he doesn’t possess Aadhaar. Aadhaar is not mandatory it’s voluntary. In another interim order Supreme Court of India said “UIDAI/Aadhaar will not be used for any other purposes except PDS, kerosene and LPG distribution system” and made it clear that even for availing these facilities Aadhaar card will not be mandatory.
After the Kargil war, Kargil Review committee was formed. It was headed by security analyst K. Subrahmanyam, the committee recommended for the issuing of identity card to all the citizens. The UIDAI was established on 28 January 2009. On 23 June 2009, Nandan Nilekani, the co-founder of Infosys, was appointed as the head of the project. In July 2010, UIDAI appointed 15 agencies to give training to personnel to be involved in the enrollment process. 220 agencies were qualified to take part in the enrollment process. UIDAI launched the online verification portal for Aadhaar no. on 7 February 2012. The online verification portal enables the telecom companies, bank and government agencies to verify whether the person is resident of India or not. Also on 26 November 2012, former PM Manmohan Singh launched the Aadhaar Linked direct benefit scheme. In November 2012 a former Karnataka High Court judge, Justice K S Puttaswamy, and a lawyer, Parvesh Khanna, filed a Public Interest Litigation (PIL) against the government in the Supreme Court of India. They proposed that the Aadhaar lacks the legislative force. Meenakshi Lekhi and general secretary Ananth Kumar had criticized the project for issuing Aadhaar to illegal immigrants. But On 5 July 2014, Modi announced that his government retain the project and asked official to look into linking the project with passport. On 3rd March 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016was introduced in the Parliament as a money bill by the finance minister Arun Jaitley. On 11th March, 2016 the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, was passed in Lok Sabha but Rajya Sabha didn’t pass the bill and the bill was returned to the Lok Sabha with certain amendments. Sitaram Yechury of Communist Party of India (Marxist) (CPI-M) said that bill should not have been passed when the issue right to privacy was still in the Supreme Court.
Privacy Concerns and violations of rights:
Unique identification is centrally authorized authority to collect the demographic and biometric information of residents. The Aadhaar project was started with an objective to provide a 12 digit unique number to every residents of India. However the scheme was later attached to various other schemes. Critics want to shut the Aadhaar project on the Privacy ground. Many held that Aadhaar scheme is violative of individual’s right to Privacy and information would be misused as many private companies are involved in the Aadhaar Scheme. Loopholes in Aadhaar Scheme are following:
1. No legislative backing
Aadhaar project is functioning on the basis of an executive action since it was setup. The Aadhaar Scheme lacks the legislative backing. The Supreme Court, while delivering judgments in various cases relating to privacy and state surveillancehas always emphasized that any action of the government must be backed by a formal statute or legislation. The Parliamentary Standing Committee on Finance, headed by Yashwant Sinha, rejected the Bill in 2011. Its concerns related to:
• The Aadhaar number will be available to every resident – citizen or non-citizen.
• The original mandate of identifying below poverty line families had been exceeded by extending Aadhaar to every resident.
• The ministries of finance, home and planning, as well as the National Informatics Centre (NIC) had expressed objections to various aspects of the functioning of the UIDAI, which were being ignored.
• The lack of clarity on whether the Aadhaar number would become compulsory.
• The possible misuse of the huge database of people and the lack of a data protection law
• The involvement of a large number of private vendors in an exercise relating to sensitive personal information.
Aadhaar bill was passed in the Lok Sabha on 11th March, 2016. It was introduced as money bill in the Lok Sabha, however Rajya Sabha didn’t pass it and recommended for certain amendments to the Lok Sabha.
2. Wide Mandate:
UIDAI has a wide mandate. Its mandate includes applicability and usage of Aadhaar. Opposition contended that giving such power to a body without any legislative backing is indeed extremely worrying.
3. Lack of accountability:
UIDAI is an independent body and functioning without any legislative backing. UIDAI lacks accountability to the parliament if there is failure in system or the data being misused by someone.
4. Private Player:
One of the major issue with the Aadhaar Project is the involvement of private individuals in Aadhaar. Private players are assigned by the UIDAI for collecting information. These private individuals register the information. So the concern is the misuse of data or information by the individuals.
5. Seeding:
This is about the introduction of the Aadhaar number into different data bases. Once the number is seeded in various data bases, then the data is easily accessible. So, if the number is in the gas agency, the ticket, the ration card, the bank, the medical records and so on, the state, as also others who learn to use what is called the ‘ID platform’can see the citizen at will.
6. Violation of Right to Privacy:
The problem with the Aadhaar Project is that many private players are involved in the registration process. Also UIDAI has authorized private companies for the enrollment process. The potential threat is the data being misused by the private companies. If the biometric information is leaked or shared then the individuals might be singled out, tracked and harassed. Also leak of someone biometric and demographic information would infringe the right to privacy. However Indian constitution doesn’t explicitly recognize the right to privacy. But right to Privacy is an inalienable right and it’s the duty of government that individual’s right of privacy shouldn’t be infringed.
Supreme Court Stands on Privacy Issue:
UIDAI lacks the legislative force, the critics want to shut the Aadhaar Project. They presented that there is a risk of data being misused by the private individuals. Many petitions have been filed in Supreme Court on the ground of privacy. Supreme Court passed two interim orders stating that Aadhaar isn’t mandatory also in second interim order SC made it clear that people are free to block their biometric information. So Aadhaar is not violative of individual’s right to privacy. But on the other hand we can’t ignore the risk of data being misused or shared by private individuals. There is the need that UIDAI has to strengthen the security and should make some arrangements that the biometric information should reach the Central Identities Data Repository directly.
Conclusion:
Privacy is very important. It’s a human tendency to have privacy in life. Indian constitution doesn’t guarantee the right of Privacy.In today’s world it’s difficult to guarantee the privacy right. We live in a technological world, machines govern us and our life is no longer private. However Privacy is an individual’s right and it’s the government duty to secure it. Our constitution under Article 21 guarantees the right to life. But an individual can live peacefully if he is not unnecessarily disturbed by others. But complete privacy to an individual can hamper the social peace. So there is a need that the government shouldn’t interfere in individual’s life unnecessarily and also prevent the unnecessary interference of the private players.
Aadhaar project was started with an objective to provide 12 digit unique number to the residents of India.It’s indeed true that the Aadhaar Project lacks the legislative backing and UIDAI is not accountable to the Parliament. But the Aadhaar project is a game changer scheme. Also shutting the Aadhaar project on the grounds of privacy and violation of rights are unjustifiable. There is a need that the UIDAI should be made accountable to the Parliament and also should be backed by the parliament.
...(download the rest of the essay above)