Right to Privacy

In August 2017, the Supreme Court in Justice K. S. Puttaswamy (Retd) Vs. Union of India upheld the constitutionally protected fundamental right to privacy under Article 21.

• It held that privacy is a natural right that inheres in all natural persons, and that the right may be restricted only by state action that passes each of the three tests:
  • First, such state action must have a legislative mandate;
  • Second, it must be pursuing a legitimate state purpose; and
  • Third, it must be proportionate i.e., such state action — both in its nature and extent, must be necessary in a democratic society and the action ought to be the least intrusive of the available alternatives to accomplish the ends.

Dilemma

National Security v/s Privacy: State has always tried defending intrusion in citizen’s privacy under the guise of national security. Even in KS Puttaswamy case, state submitted arguments stating that privacy is an elitist construct and institutionalizing right to privacy would be against the welfare of poor. Activities pertaining to breach in Individual’s privacy always present this dilemma.

Post-Judgment Developments

• In 2018 Union government had issued notification authorizing central investigating agencies to intercept, monitor or decrypt any data stored in any computer in the country. It was challenged in the Supreme Court.
• Mass surveillance programs like ‘Social Media Monitoring Hub’, ‘Project Insight’ were launched by Union government in 2018 but the former was quashed by SC whereas the latter continues to exist.
• Various snooping and hacking incidences like Cambridge Analytica, ‘Big Game Hunting’ ransomware etc. were in news.
• The Constitutional validity of the Aadhaar Act was upheld on the ground that it “struck a fair balance between the Right of privacy of the individual with Right to life of the same individual as a beneficiary” but its possible misuse by the State and private entities was prevented.

Possibilities and Prospects

Though Right to Privacy is intrinsic in Article 21 of the Constitution, a step towards making it explicit would ensure adequate safeguards against executive excesses. A progressive state is not judged merely on its economic might but also on the leverage given to personal liberties. India needs to follow this approach.