24 August marks the first anniversary of the Supreme Court’s reaffirmation of privacy as a fundamental right under the Constitution. The Puttaswamy judgment witnessed a nine-judge bench unanimously hold that privacy is a fundamental right enshrined under Article 21 of the Constitution of India.
The Quint spoke extensively with experts who have been involved with privacy litigation, campaigning and activism to find out how the fundamental right has evolved in the one year since the landmark judgment.
A Strong Legal Standard
According to Apar Gupta, Supreme Court advocate and a founding member of the Internet Freedom Foundation, the first anniversary re-emphasises how privacy as a value has grown and how awareness around it has become mainstream.
As a fundamental right it does appear stronger in terms of a legal standard which has to be satisfied not only by government but even by private corporations which gather increasing amounts of our data today.Apar Gupta
Describing the Puttaswamy judgment as a right to liberty and right to dignity judgment alongside it being a right to privacy judgment, Usha Ramanathan said that the verdict “explains how every person in this country has a right to be who they are. And it also explains how the State cannot control who you are.”
Arghya Sengupta, founder and research director of Vidhi Centre for Legal Research, agrees with Gupta in stating that the judgment has been successful in “bringing questions of privacy front and centre into the public discourse.”
However, Sengupta questions its legal significance.
Legally, I think that it doesn’t make as much of a difference given the fact that Article 21 of the Constitution, which is our right to personal liberty, anyway protects the values of privacy.
The Government, Aadhaar and Its Argument Against Privacy
Ramanathan reminds us that the Puttaswamy judgment did not emerge in a vacuum. “It came because the government had gone to court and said that people in this country don’t have a right to privacy at all,” she added.
Why did the government go to court?
Because, the UIDAI project.
“In the Aadhaar case, for reasons best known to the government, it decided to contest an established jurisprudence of nearly 40 years of privacy that existed as a fundamental right in India. And they lost that case,” said Prasanna S, a Supreme Court advocate.
Why Did the Government Argue Against Privacy?
While the nine-judge bench was still hearing the case, the UIDAI appeared before Court on 31 July and informed the bench that the Centre had constituted a committee of experts headed by former Supreme Court Judge, Justice BN Srikrishna to look into “key data protection issues” and suggest a draft data protection Bill.
The Committee submitted its report and a draft data protection bill on 27 July. The Bill came in for heavy criticism for the exemptions it provides to the state for processing of personal data, the absence of surveillance reforms, and provisions for data localisation.
“The reason why the Srikrishna Committee was constituted was because they did not want an unequivocal statement of the right to privacy and therefore attempted to come to court and say this is not the right time for you to decide because we are anyway taking care of privacy with our data protection framework,” Prasanna told The Quint
Arghya Sengupta, a member of the Srikrishna Committee, had previously argued on behalf of the State of Haryana and the Telecom Regulatory Authority of India (TRAI), that a right to privacy was “legally redundant”.
“What i argued in court is not that there is no general right to privacy but that no general right to privacy should be read in because the values that privacy protects are already protected in the Constitution,” Sengupta clarified.
There’s Rights, and There’s Fundamental Rights
Sengupta pointed out that no rights are absolute within our Constitutional framework. The Right to Information of a citizen could be at odds with the Right to Privacy of another.
“I cherish them, I cherish all of them, but I know that in order to live life in way in which I want to all of these rights will have to be balanced and I think that is what is the role of rights generally in our constitutional framework,” Sengupta said.
Apar Gupta, however, weighed in on the importance of fundamental rights over other forms of rights such as common law rights and statutory rights.
Now privacy has become a very very strong right when it becomes a fundamental right as opposed to a common law right, a statutory right or a form or species of right by itself that’s why this was important and that’s why the govt was fighting itApar Gupta
The difference between common law rights, statutory rights and fundamental rights are as follows:
Common law rights being rights that come through decided cases and have been evolved over a period of time through litigation in courts.
Statute-based rights are creatures of Parliament and are created by legislative enactment.
Fundamental rights stand on a much higher footing. They arise from our Constitutional text and provide a higher degree of guarantee to a lot of people. They act as a very strong barrier against infringement and interference in individual liberty.
“A lot of people say that Indians don’t care about privacy, but we have evidence to the contrary,” said Gupta while speaking about the impact of the judgment in terms of engaging people towards a better understanding of privacy.
As a co-founder of Internet Freedom Foundation, he has also been instrumental in the #SaveOurPrivacy campaign. “The save our privacy campaign which was launched about two months ago has done tremendously well. We have been able to reach out to a large set of people, more than 1000 people have signed on and 27 organisations have supported it,” he added.
Has the Government Changed Its Stance in the Last Year?
“So if you look at whether privacy judgment has altered state practice, the answer will have to be no not very much,” said Prasanna, referring to the regular reports of UIDAI related data leaks and mandating the linking of aadhaar to phones and banking.
“Apart from advisories about not making personal information public nothing else has changed. Indiscriminate collection, indiscriminate processing of personal data continues unabated,” he added.
At the same time, this doesn’t mean the judgment hasn’t had an effect on the ground. As Apar points out, if it weren’t for the privacy judgment, we wouldn’t have seen the government forced to withdraw plans for a Social Media Communications Hub, when taken up to the Supreme Court.