Right to privacy paves way for new data protection framework

New Delhi: With the Supreme Court on Thursday upholding the right to privacy as a fundamental right, doors have been opened to an era of a holistic data protection framework.

“The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution,” the nine-judge bench’s judgement said.

While the state can still curtail the privacy of citizens within the parameters of Article 21 of the Constitution, legal experts said the ruling would ensure a remedial measure to protect citizens against any undue infringement.

“The common man did not have any concrete, statutory privacy law, because even the IT (information technology) Act of 2003 was silent on privacy laws. Now the Supreme Court judgement has made way for that because no police personnel can enter a person’s home and demand that laptops or mobiles be searched without a court order,” said Pavan Duggal, a cybercrime expert at the Supreme Court.

However, Duggal also pointed to the potential for misuse.

“This can be misused by people who are under investigation by law enforcement agencies that their right to privacy is being violated. However, the judgement also states that this will be balanced because it now focuses on the realities of the internet and the digital medium,” he added.

Law minister Ravi Shankar Prasad, in a press conference on Thursday, said the government had always upheld the need for privacy, with finance minister Arun Jaitley having recently told the Rajya Sabha that the “right to privacy is a fundamental right”.

Prasad said the right to privacy is part of a citizen’s right to liberty, subject to certain restrictions, and added that the Congress party had failed to protect “individual liberties” during the Emergency.

In the past, even in judgements which have ruled against the right to privacy—like the 1962 Kharak Singh case—the sanctity of the home, and protection against unauthorized intrusion have been held to be an integral part of “ordered liberty”.

However, while considering the validity of legal provisions that provided for periodical enquiries, reporting by law enforcement personnel and verification of movements, the court has held that “the right of privacy is not a guaranteed right and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right”.

An expert panel on privacy headed by justice A.P. Shah had in its report opined that the new “framework on the right to privacy in India must include privacy-related concerns around data protection on the internet and challenges emerging therefrom, appropriate protection from unauthorised interception, audio and video surveillance, use of personal identifiers, bodily privacy including DNA as well as physical privacy, which are crucial in establishing a national ethos for privacy protection”.

It remains to be seen how these requirements are incorporated into the now anticipated new data protection framework, and its effect on the original bone of contention—the Aadhaar scheme.

According to Duggal, the judgement is likely to have a positive impact on limiting the usage of biometric information collected by the government for Aadhaar.