Right to Privacy is vague, legally
While hearing of petitions challenging the Constitutional validity of the Aadhaar scheme, the nine-Judge bench of the Supreme Court had observed that Right of Privacy is not necessarily coexistent with data protection. "Privacy is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens. The 'Right to Privacy' is in fact too 'amorphous' a term." The Apex Court bench, headed by Chief Justice J.S. Khehar examining a reference on the question whether privacy is sacred, fundamental and an inviolable right under the Constitution, said that to recognise privacy as a definite right, it had to first define it. But this would be nearly impossible as an element of privacy pervaded all the fundamental rights enshrined in the Constitution.
The Court sought to know why citizens were uneasy to share personal information with the State when they had no problem doing so with private players. "When someone uses an iPhone or iPad with fingerprint login, their personal details are already in the public realm… Is there something qualitatively different when the State does the same (seek personal information)," Justice D Y Chandrachud, one of the judges on the bench asked senior counsel Sajan Poovayya, who was appearing for the petitioners. The court also said that an attempt to define the Right to Privacy may cause more harm than good. "This was why even Europe had to bring in two separate conventions, one dealing with privacy and another with data protection. Whether we like it or not, we live in a world of big data and the state is entitled to regulate privacy. Privacy is not so absolute or overarching to prevent the state from legislating," Justice Chandrachud said. He also referred to instances of governments collecting data and using it to find out who may be likely to commit a crime. "While applying for a passport, can someone say they will not furnish the information asked for? Can someone who adopted a child be compelled to disclose the name of biological parents? Can we deny passport to a single mother if she does not want to disclose the name of the child's father," he said, asking to what extent one can assert privacy rights to suppress one's identity, adding, "There, artificial intelligence is applied to profile people and find out who is predisposed to crime. That is profiling.