Is Right to Privacy a Fundamental Right?-GD TOPIC 10

Privacy is the fountainhead of all other rights. Freedom of speech doesn’t have a lot of meaning if you can’t have a quiet space. A space within yourself, within your mind, within the community of your friends, within your home, to decide what it is you actually want to say.”

Edward Snowden

A 9-judge bench of the apex court of India, the SC on 25th August 2017, decided the right to privacy is a fundamental right. The Constitution bench headed by Chief Justice JS Khehar held that right to privacy is a fundamental right because it is an intrinsic part of the right to life and personal liberty. Under Article 21 of part III of the Indian constitution, this judgement requires increasing importance in this day and age of Aadhaar and digital connectivity. 

Prior to the pronouncement of the judgement, the CJI said there was a difference of opinion in legal and judicial circles regarding privacy as a fundamental right. So, where does this lead the debate to? Is privacy a fundamental right or not? 

Yes

1. Prevent misuse of data

Misuse of data by foreign firms is the major issue here. If right to privacy is not secured as a fundamental right, then data can be stolen or misused by foreign technology firms and marketing divisions of companies. This can lead to disclosure of client data which was earlier confidential. 

2. Privacy as an all encompassing basic right

Citizens have complete right to control their privacy. Privacy includes the right to be left alone, the right to freedom of thought, freedom to dissent, bodily integrity and informational self determination. It is integral to fundamental existence. 

3. Prevent breach of confidential information

The issues arise from privacy invasions by Aadhaar and digital data are serious. These need to be fully addressed by the courts. Protection of personal information in the public domain is a critical concern, necessitating the need for making privacy a fundamental right. 

4. Right to privacy inalienable

Right to privacy is an inalienable and inherent part of fundamental right to liberty. The right to privacy is a natural preexisting right under the right to liberty which the Constitution guaranteed and acknowledged to the citizens through the historic SC judgement. 

No, it is vague and amorphous

1. Right to privacy subject to reasonable restrictions

The Attorney General has held that right to privacy cannot be an absolute right and the state may have power to impose reasonable restrictions on it. Right to privacy cannot fall under a bracket as a fundamental right as there were many decisions of benches are there that it was a common law. 

2. Privacy a vague and amorphous right

The Centre has termed privacy as a vague and amorphous right that cannot be granted primacy. This is because while some aspects of maintaining privacy are understandable, others are difficult to comprehend. 

3. What about criminals and law enforcement?

Right to privacy can’t be applicable in case of the enemies of the state, such as criminals and terrorists. Interpol and policing agencies would lose their meaning if surveillance is not in place to check wrong doers and information about their private data made public. 

While the SC judgement has paved the way for right to privacy as a fundamental right, many questions remain to be answered. Individuals cannot secure the right to freedom and liberty without privacy but surely the law should be subject to reasonable restrictions to safeguard society? Looking at the right to privacy in black and white terms may obstruct the complexities underlying this law. Making it a fundamental right is tantamount to giving a free pass to wrongdoers who do not deserve to be shielded from the consequences of their criminal actions through a cloak of anonymity.