Introduction

In the era of digitalization, Data protection and privacy of an individual has been a crucial issue hanging like Damocles sword. The issue of privacy of the citizens was always a matter of debate even before and there is a plethora of cases regarding it too but Privacy as a concept was never made a fundamental right until the advent of the 2017 landmark judgement of the case Puttuswamy Vs UOI. The matter gained attention when the Aadhaar which was India’s national identity project, was tried to be implemented. It was only then that various loopholes in the act glared at the nation disparagingly.

The Aadhaar was made mandatory for many reasons for which the government did give legitimate justifications. But at the same time, there were several issues on raised regarding the safety and misuse of the data collected by the Government of India as well as unnecessary linking of Aadhaar to other private subsidiaries services.

 Article 21 is one of the most important of all fundamental rights provisions as it guarantees right to life and liberty. These two terms are quite broad and includes several parameters and is multidimensional. Until 2017, Privacy wasn’t considered as a fundamental right. Right to privacy with reasonable restrictions is supported not only by the Indian constitutions but also laws of other countries and international conventions.

Defining Privacy

“Right to be let alone is the right of a person to be free from any unwarranted publicity; the right to live without any unwarranted interference by the public with which the public is not necessarily concerned. ’Privacy as a concept doesn’t have a universally accepted fixed definition as the concept is broad and multidimensional just as article 21 of the Indian constitution is. Privacy as a concept has always been a burning issue and the Indian judiciary has seen a fair share of cases revolving around the same. But in the era of digitalization, the concept of privacy and data protection has become even more important.

There is a thin line of difference between the right to information (RTI) and the privacy of an individual. The right to privacy was itself a fundamental right, but subject to some restrictions on the basis of compelling public interest. Recently the issue of privacy was brought into focus when the government of India introduced the national identity system called Aadhaar which basically collected all personal details and information of the citizen and stored at government databases. This was done so that an efficient distribution of subsidies for the poor takes place. But the problem was Aadhaar was them made compulsory to be linked with all other schemes as well as private subsidiaries for services being offered.

The citizens of India have a right to choose but this service forced the citizens to disclose their Aadhaar details for getting private service like telecommunications. Also, people were forced to reveal personal details Religion, caste, income levels along with their biometrics for their Aadhaar. This is turn set a fire of questions whether the citizens have assurance to protection of their data from being misused by third parties or private establishments. The definition of privacy has evolved over the year with time and so does the laws and regulation need a revamp. Earlier privacy used to be understood as trespass on private property or even cause disturbance or nuisance on a private property and now online.

Justice K S Puttaswamy vs Union of India & Ors. (2017)

FACTS

In January 2009, Unique Identification authority of India (UIDAI) was introduced by the planning commission and passed in 2010. In 2012, Retired Justice KS Puttaswamy and Parvesh Sharma filed a writ petition against the Union of India challenging the constitutionality of India’s national identity system, Aadhaar. This was on the basis that Aadhaar violates the citizens right to privacy.

 A 9-judge bench was supposed to contend whether right to privacy can be deemed as a fundamental right emanating from article 21 of the Indian constitution. The PIL was based on the basis that Aadhaar violated Right to Privacy under Article 21. In the year 2016, the Aadhaar act was passed. This act was recommended by the Lok Sabha to be made into a money bill and be treated as the same. Then a writ petition was filed again and this was then combined with the original writ petition.

 Jairam Ramesh challenged the move to make the Aadhaar bill a money bill. A money bill was supposed to be passed in 14 days and required presidential assent. Also, there were strict criteria laid down to identify and qualify as a money bill.

 The Aadhaar was introduced with the intention of helping the poor with their subsidiaries and also to track the income tax etc. Though the intentions of this initiative seem to be good, it violates the citizens right to choose to disclose personal information.

 It not only collected personal information but also biometric details like iris and finger prints. The main issue was the state being totalitarian in nature and compromising the privacy of its citizens.

JUDGEMENT

The court after analysing the arguments of both the parties finally landed up at a conclusion and sided with the respondent side. The court analysed the arguments and arrived at the fact that by collecting the citizens demographics the government of India is not violating the privacy of the citizens and is in no way making the state totalitarian in nature. The court laid down the judgement which was headed by the Chief Justice Deepak Misra and said that the data collected should in no way be released to private institutions and organizations for their use as this would then result in breach of citizens right to privacy.

The court held that the government is right in making Aadhaar mandatory for availing subsidies and schemes. This makes sure the subsidiaries reach the right people instead of the wrong people. The Aadhaar is only collecting basic demographic information and not making it compulsory to link their mobile numbers and email address unless they wanted to receive notifications. Also, the court ruled that Schools will make it optional for students to disclose their Aadhaar numbers during board exams and the same for opening bank accounts. Banks cannot refuse services if Aadhaar number is not attached. The same also applies for children.

The court also highlighted the need for a service like this and differentiated an Aadhaar and an Identity card. Aadhaar cannot be misappropriated and duplicated. It is highly unique and each individual possesses a unique ID and can be recognized through their biometrics of Iris and the finger prints. The court further went on to strike Section 57 of the act as it was found unconstitutional. Section 57 allows not only the State but also any "body corporate or person" or private entity to demand Aadhaar from citizens for the purpose of identification.

The court held that private entities have no right to acquire private information of the citizens nor force them to link their Aadhaar number with their service as mandatory. The state shall not share information with any private entities or organizations. Paytm for its KYC scheme had made Aadhaar card number as mandatory in order to avail baking and payment services through its platform. Telecom sector also cannot force the customer to link the same.

 The court also went further to say that Collection and storage of data by the government does not in any way violate the rights of the citizen. And by doing so, the state does not become one of surveillance in nature. The three-fold rule is to be used as a criterion for detecting the breach of privacy and rights. Linking of this to the PAN card and IT filings can also help eliminate the multiple PAN cards and also help identify and blacklist the defaulters and hence promotes equality according to Article 14. The court laid down a 3 criteria principle for this: Legitimate aim, proportionality and legality. The 9-judge bench concluded that privacy is a fundamental right which stems from article 21 and Part III of the Indian constitution and is also subject to reasonable restrictions and is not absolute.

Conclusion

This case is landmark and left an impact on the Indian legal fraternity by landing to a conclusion on the matter of Privacy of its citizens. This case finally laid down the concept of Privacy of the citizens as a fundamental right. Right to Privacy is hence part of Right to life which emanates from Article 21 of the Indian Constitution. Aadhaar was approved and was found to be Unique for every individual. It was supposed to eliminate duplication and scams involved. It allowed the poor to get their subsidiaries, helped find out the non-tax payers eliminate multiple PAN cards.

 Right to privacy is something guaranteed by Part -III of the Indian constitution but it is not absolute. It is subject to reasonable restrictions. Aadhaar is reasonable as it collects only demographical information. The court also helped lay down 3 basics ruled for identifying what is breach of right to privacy of individuals in the society. The court also helped strike down the unconstitutional parts of the Aadhaar act including section 57, Section 33(2) and Section 47 which included civil penalties for not disclosing information or taking cognizance of the act or refusal of services due to it.

The court also emphasised on the concept of Data protection in the era of technology and all things digital. The concept of Privacy has evolved over the years and the court overturned previous two judgements namely the Kharak Singh v. State of Uttar Pradesh and the M.P. Sharma v. Satish Chandra case which had landed on quite the contrary as to the current judgement. The court also recommended constituting an expert committee to review the situation and laws to come up with suitable regulations and criteria as to data protection in India. There were several critics which claimed this case to be one of Judicial Outreach or Over reach but this case was quite revolutionary and went ahead to Protect the rights of the citizens and help strike down parts of law which contradicted the Fundamental rights or the basic structure of the constitution.

About the Author: This post is prepared by D. Drishya, Law student at NMIMS Kirti P Mehta School of Law, Mumbai. She can be reached at drishyadilipofficial@gmail.com 

 

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