To start with, the 9-Judge Bench of Supreme Court after hearing both sides reserved its verdict on the question whether privacy is a fundamental right under the Constitution or not. The marathon arguments that begin on lasted for six days. The judgment is likely to be pronounced before August 27, the date when the incumbent CJI JS Khehar demits office.
In this context, it would be pertinent to note that Justice RF Nariman who is a member of the Bench led by CJI JS Khehar rightly posed a question to the Additional Solicitor General Tushar Mehta who opposed privacy being recognized as a fundamental right. Justice RF Nariman asked: “A one whole chapter in the Aadhaar Act deals with privacy interest. Is this not another legitimate recognition of it (privacy) being a fundamental right?” Earlier Justice SA Bobde wondered whether the Aadhaar Act of 2016 itself had any provisions to protect privacy. To this, Venugopal then pointed to Section 28 of the statute dealing with “security and confidentiality of information”. To this, Justice Bobde again shot back asking “So does this mean you do recognize privacy as a fundamental right?” The palpable answer is yes.
Truly speaking, the Bench then did ask the petitioners that if privacy essentially was liberty, then why distinguish it as a fundamental right. The Bench understood privacy to fall into three zones – intimate, private and public, and said that Government control would increase from the first to the last zone. Senior counsel Gopal Sankaranarayanan who appeared for the think tank Centre for Civil Society raised the point about apps. He said that, “When we use an app, it asks us whether it can access the contact list, pictures etc and we invariably say yes. Thus, we are waiving our privacy. But if we raise privacy to the status of a fundamental right, it cannot be waived”. A valid point.
Similarly in Kharak Singh v The State of UP & Others [1964 1 SCR 332] dated December 18, 1962, the writ petition was adjudicated by a six-Judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR Mudholkar , the Bench struck down Clause (b) – domiciliary visits at night – of Regulation 236, but upheld the rest. The Bench also held that, “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights).”
In this case the petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.
Elaborating further, it must be pointed out that Justice DY Chandrachud set out the tentative thought process and drew support from Justice RF Nariman. He said, “The first zone could be the most intimate zone of privacy concerning marriage, sexuality, relations with family and the law should frown upon any intrusion. The state could still intrude into this intimate zone in extraordinary circumstances provided it met stringent norms.”
The Bench also elucidated further that, “The second zone would be the private zone, which involved parting of personal data by use of credit card, social networking platforms, income tax declarations. In this sphere, sharing of personal data by an individual will be used only for the purpose for which it is shared by an individual. The third is the public zone where privacy protection requires minimal regulations. Here, the personal data shared will not mean the right to privacy is surrendered. The individual will retain his privacy to body and mind”. This clearly implies that the right to privacy may not be unfettered.
Needless to say, Justice Chandrachud also sought to make it clear that, “The data so submitted must be used only for the purpose for which it is given”. He added that, “When a person goes from zone one to zone three, the privacy right remains. When it is balanced against state interests, that state interests will have to satisfy the tests of that zone.” There can be no denying it.
et me also bring out here that Justice Chandrachud said, “We are dealing with an issue that has an impact on what constituted India as a powerhouse for growth of service sector. The analysis of choices and personal preferences of 1.4 billion and the analysis of this generates demand in the service sector. In defining the right to privacy, we must keep in mind this critical sector which depends on personal data of Indians using a particular service.” There is a great risk of personal information falling into the hands of private players and service providers. On this, Justice Chandrachud rightly said: “I don’t want the state to pass on my personal information to some 2,000 service provider who will send me Whatsapp message offering cosmetics and air conditioners…That is our area of concern. Personal details turn into vital commercial information for private service providers.” As both the government and service providers collect personal data, the chances of data leakage become increasingly more!