Right to Privacy
Need for Right to privacy
- Extensive use of internet and social media
- Use of digital technologies having huge data generation
- Creation of big databases like Aadhar prone to theft
- Focus on Big Data used by companies.
SC Judgment on right to Privacy
- Declares it a constitutional right under article 21
- It extends from data privacy to choice of food, intimacies, sanctity of family, marriage life and sexual orientation.
- Government should bring a data privacy law
- Right is not absolute and will have reasonable restriction. Justice AP Shah panel in 2011 suggested restrictions like security of India, public order, criminal investigation and protection of other’s freedom.
Significance of right to Privacy
- Firmer restrictions on State.
- Citizens can now file write petitions under 32 and 226 to ensure it is protected.
- Broadened definition of article 21 and ensured dignity
- Ensured data protection and privacy
- In tune with international conventions like ICCPR
- Affect homosexuality, choice of food and clothes
Concerns of right to Privacy
- Brings Aadhar into question as biometric data can be said to be breach of privacy.
- Misuse by investigating agencies.
- Legal issues like data encryption in Whatsapp chats
- Applicable to only individuals or even organizations?
- Fundamental right to know under RTI can conflict with fundamental right for privacy.
Impact on Aadhar- need to prove aadhar doesn’t violate right to privacy, or it falls within reasonable restrictions of FR, Aadhaar law will need to have strong privacy clauses, it will also define whether socio-economic welfare under DPSP precedes to rights under 14 and 21.
- 124A IPC states that any person either by written or spoken words tries to create disaffection or hatred or contempt towards govt is liable to be imprisoned for life.
- Issue came up when sedition charges were slapped against Hardik Patel and sedition charges order under IPC 124A issued by Maharashtra government. JNU case
- This can be contested as violation article 19 because criticising the government can’t be called sedition. Hardik Patel charged of sedition.
- It can be argued that the IPC was made during British times and was used to muzzle any criticism of government. Gandhi had called it the prince among all the sections of IPC to suppress the liberty of citizen.
- Kedar Nath vs State of Bihar 1962 where validity of 124A was challenged as a violation of article 19a. The court tried to limit the scope of interpretation by saying that only when written or spoken words try to create public disorder and law & order problems can the law be used.
Speaking against state and speaking against government are two different things.
- Solution- A petition in SC asking to make approval of DGP or police commissioner necessary to file a sedition case. It will act as a filtering mechanism.
Case is Puttuswamy vs Union of India.
- SC upholds validity of Aadhaar on the three tests- existence of law, legitimate state interest and test of proportionality
- SC rejects proposition that Aadhaar will create surveillance state. It says Aadhaar is protected
- It upholds introduction of Aadhaar as Money Bill and also for distributing subsidies
- Section 33 which made an exception for national security struck down
- Section 57 which allowed the use of Aadhaar for private entities like banks and mobiles struck down.
Aadhaar Amendment Bill 2019 passed in both houses-
- Use of Aadhaar made voluntary.
- No one to be denied service
- Voluntary use of Aadhaar as identity proof for banks and mobile companies
- Provision for offline authentication in absence of Aadhaar
- A child can opt out of Aadhaar at the age of 18.
Benefits of Aadhaar
- 2016 World Bank Digital Dividend Report says India will save $11 billion if Aadhar is used in all welfare schemes.
- stops leakages to ghost beneficiaries
- reduces bureaucracy as DBT will be used.
- direct transfer of income to the poor.
Drawbacks of Aadhaar
- Exclusion of benefits to needy just because they don’t have Aadhar and technological glitches like no detection of finger prints.
- Open permission to State to act in case of “National Security” which is not defined in the act.
- The larger issue is of trustworthiness of the State.
- Loss of privacy as the information can be used by the government. However, the issue will come up when the constitutional bench of SC will decide on right to privacy.
- Deliberate stealing of data as we have a weak cyber security infrastructure.
- Section 57 enables the government to impose Aadhaar identification in virtually any other context that is not mentioned in the bill.
- Cognizance of offence: No court shall take cognizance of any offence except on a complaint made by the UIDAI. Thus, a person who is aggrieved by breach of data has no remedy at his/her disposal.
- Prosecution: The Aadhaar Act does not make UIDAI liable for criminal prosecution in case of breach of data as per Section 43 of the Information Technology Act.
- Compensation: Unlike in western countries, the Act does not have any provision for compensation to the person whose data is compromised.
Marital rape – demands to criminalize it
- National Family Health Survey 2015-16 says 8.2% married women faced sexual violence between age 15-49.
- Exemption in IPC section 375- a man having intercourse with his wife older than 15 years of age is not rape.
- Currently, women have no choice but to seek remedies under Domestic Violence Act 2005 in cases of marital rape.
Support for criminalization
- Issue of freedom of choice, consensual sex, autonomy over body and no coercion. Marriage rests on choices of both.
- Women are docile, dependent and limited to house. Thus, patriarchy views as traditional role of woman is to reproduce
- 172nd Law Commission report and Justice Malimath committee on criminal justice asks to remove this provision just like many countries like Spain, Austria, etc.
- Justice Verma committee has said that marital rape is not about passion but a show of power and subordination. Thus, it needs to be criminalized.
- Sanctity of marriage
- Makes men vulnerable to fake cases like ones under section 498A.
- Legal definition of what is rape and non-rape is difficult in a marriage
- How to prove it was forced.
- Euthanasia or mercy killing is a way of assisted suicide wherein a person’s life is ended to relieve suffering.
- SC judgment held that Right to Life and Dignity includes Right to Die with Dignity and Right to Refuse Treatment. However, it rejected active euthanasia. It also set up guidelines to judge the validity of living will of that person. It legitimized the use of Advanced Directive by the ill patients
- It is a significant development over the Aruna Shanbaug vs Union of India 2011 case
- Govt has passed the Treatment of Terminally Ill Patients Bill to give effect to passive euthanasia
- Concerns- It cannot be a right to kill anybody. Better treatments are available. Right to die should not become duty to die under pressure. It puts doctors under pressure to decide on euthanasia cases.
Section 377 IPC and homosexuality
Navtej Singh Johar vs Union of India 2018
- Sec 377- punishable offence for carnal intercourse with man, woman or animal against the “order of nature”
- Background- NGO Common Cause case in Delhi HC in 2007. HC scrapped 377. SC overturned order in 2013. Now a constitutional bench is looking in its validity given Right to Privacy judgment.
Judgment on section 377
- SC established doctrine of Progressive Realization of Rights and Non-Retrogression.
- 377 was violative of article 14,15,19 and 21 and violated Right to Intimacy which is an integral part of right to privacy
- It called 377 as “irrational” and said homosexuality isn’t a mental illness or against morality or public health.
Support scrapping section 377
- Element of Victorian Morality reflecting British biases
- Article 21- right to chose one’s partner as also Right to Privacy
- 172nd Law Commission report asked for its scrapping
- What is order of nature
- Lawyers raised issue of how can a pre-constitutional law be not tested post constitution fundamental rights
- studies suggest homo to be natural
- Cultural argument- Shikhandi, Khajuraho, Kamasutra
Arguments Against section 377
- It can harm stability of society
- It is against traditional morality
- It is considered unhealthy and indecent. Reasonable restriction under article 19-2
- Future of issues like inheritance, adoption, marriage and live-ins