THE DEBATE ON RIGHT TO PRIVACY
The Supreme Court has significantly widened the contours of right to life in previous judgements to include right to clean environment, education, and livelihood. However, it is now grappling with an interesting controversy; as to whether right to privacy can be considered as part of right to life. This is in the context of petitioners challenging the law on Aadhaar Card as offending right to privacy. Justice D.Y. Chandrachud on behalf of the nine judge bench has asked pertinent questions viz. how to define privacy, its contents and contours and obligation of the state in this regard.
It may be recalled that a recent five member bench has upheld the validity of amendment to Section 139AA of IT Act, which makes it obligatory to quote the Aadhaar number for filing IT returns. In their judgement the court agreed with the government contention that to preempt proliferation of fake PAN Cards, and black money, this move by the government is a justifiable reasonable restriction on right to freedom in terms of Article 19(2). The court had earlier also upheld use of Aadhaar for various subsidy schemes, as it will stop leakage to unintended beneficiaries.
It would be interesting to reflect on judgements of Supreme Court of USA in this regard as the US Constitution provides unfettered freedom of speech and expression which includes the press explicitly. In the Cox Broadcasting Corp. vs Cohn Case (1975), the court had held that the press cannot be said to violate right to privacy if it obtains the name of the rape victims from the public records and publish them. In another famous case Roe vs Wade Case (1973), where the right of an unmarried pregnant woman to terminate her pregnancy by abortion was challenged, the court upheld the right to privacy. In contrast the Indian courts have been more demure.
In the Rajgopal Case (1994) the Supreme Court brought out a few broad principles on what constitutes right to privacy i.e. “a right to be let alone”. This would include that no one can publish anything concerning “anything in matters like one’s family, marriage, procreation, motherhood, child bearing and education, whether truthful or otherwise, without his consent”. However, if such details are part of public records including court records, “the above caveat will not apply and right to privacy will no longer subsist”. The court also made an exception in the case of females in the interest of decency that if she is a victim of sexual assault, kidnap, and abduction. She should not be subjected to the indignity of her name and her name being published in the media/press, clearly disagreeing with the position taken by the US Supreme Court in the Cox Case.
There is another judgement by the Supreme Court in PUCL vs UOI (1996) involving telephone tapping where the court considered it to be a serious invasion of an individual’s privacy. The court ordered that the telephone tapping in terms of Section 5(2) of the Telegraph Act can be issued only under the Home Secretary, GOI and of the States. It also enjoined upon such authority to maintain records of intercepted communication and a review committee under the Cabinet Secretary to evaluate if the order given was relevant or not. This was indeed a remarkable judicial move to preempt executive highhandedness in the matters of telephone interception.
In this year’s budget speech, Mr. Arun Jettley clearly brought out how there is a serious dissonance between what is declared through IT returns and the money that was deposited during the demonetization. This is borne out by the fact that Tax to GDP ratio in India is abysmally low (11%), compared to most emerging market economies (16%). This is largely due to large scale tax evasion, proliferation multiple PAN Card, parking money in tax havens, illegal contribution to political parties and large scale money laundering in the real-estate sector. The real issue is how to balance privacy laws with security and economic compulsions of the state. The Supreme Court had observed in the Selvi Case (2010), that no one can be forced to undergo a lie detection test as it would be tantamount to his right against self incrimination. Similarly, no one can be forced to give his finger print or iris scan for having Aadhaar Card. But the requirement of filling the Aadhaar number in IT returns is an eminently “reasonable” one. The Rajgopal Case has broadly defined the contours of right to privacy and the limitations that should be kept in the backdrop. In this age of “big data”, these caveats still remain relevant. The Constitution Bench would do a signal service if it reiterates that the clamour of absolute privacy is an anachronism and reasonable restrictions overseen by the Supreme Court would allay concerns of undue intrusion.
The author teaches Constitutional law