Right to Privacy: Govt is Now Duty-Bound to Protect Citizens’ Data

The fact that the right has been recognised as a basic one imposes an onerous burden on the State to protect it.

The historic judgment handed out by the honourable Supreme Court on 24 August is progressive in more than one sense of the word. By upholding privacy as an inalienable right, the SC expressly recognised that the privacy right, along with basic rights, is integral to a person’s right to life.

In other words, the right to privacy is now on an equal footing with other rights that are constituted upon the birth of the individual, and will dissolve only upon the individual’s death. Therefore, these rights are not dependent upon the existence of the State or a State’s Constitution.

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A Right Founded Upon a Jurisprudential Platform

Unlike other statutory rights, such as the copyright or trademark which are granted by the State, the privacy right has been founded upon a jurisprudential platform that impart to the right a status preceding that of the State.

This has wide ramifications. For one, the status of privacy in India has now been elevated to the status that the right enjoys in the European Union. In the European Union, the right to privacy enjoys status as a fundamental right, that is recognised in Article 8 of the ‘EU Charter of Fundamental Rights’ as one of the several essential rights of a human being.

It follows, an individual need not suffer harm to prove an invasion of privacy, as the very act by a third party of viewing an individual’s privately generated data will constitute violation of the right.

Consequently, the EU has one of the strongest data protection regimes in the world. It has done so in a manner that is backed by a constitutionally permissible legislation.

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‘Opt-In’ Option to Data Collection

On 24 August, the SC could have recognised the privacy right as worthy of protection instead of as a fundamental right. This alternative interpretation would have relegated the right to the status that the right enjoys in the USA.

The SC’s decision instead means that not only that the State cannot take away such a right, unless backed by laws that will be hammered on strong tests of constitutionality, but additionally, the State has to ensure the protection of such rights.

In contrast, the different, and lower status that the privacy right enjoys in the US, entails that the right can be taken away unless secured, inhibited or barred by law.

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However, doubts have been raised regarding the practical application of the right to privacy in India and how the same will be recognised and protected in realistic frameworks.

But the very fact that the right has been recognised as a fundamental one imposes an onerous burden on the State to ensure protection from violations by not only the State, but by other private entities too.

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This is in line with the past SC decisions which have categorically laid down that Article 21 not only acts as a protection against the State, but contains rights that have to be protected by it.

It is this second aspect of Article 21, whereby the State may be compelled to remain duty bound to ensure that citizen’s privacy rights are not violated by third parties, widespread applications of which will be found in multiple dimensions including the digital space.

While this decision may not hamper data collection, data processing or data transfers, and may not possibly outlaw the Aadhaar Act, it will ensure that the State brings out necessary checks within a regulatory framework.

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These checks will empower data subjects (individuals who generate data) to exercise significant control over how their data is collected, type of data that is collected and third parties with whom the data is shared with.

This should also ideally mean that citizens will be empowered with an ‘opt-in’ option to data collection rather than an ‘opt-out’ option. This is expected, owing to the fundamental nature of privacy whereby automatic data collection, in the absence of conscious consent may amount to an invasion of privacy, in the absence of law permitting such automatic data collection.

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(The author is an advocate working with Arthe Law. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

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