The Supreme Court on Wednesday questioned the government’s stand that the right to privacy is not a fundamental right. In the words of the apex court, “If a man is not safe in his own house, then what remains in Article 21 (right to life and liberty)? Where is the liberty then? If privacy is not there in liberty, then what else can be there?” This is in response to the rather dogmatic stance taken by the Attorney General on behalf of the Centre while defending the government’s controversial Unique Identification (UID) program. It is true that privacy enjoys an abundance of meanings. It is claimed in diverse situations every day by everyone against other people, <g data-gr-id="46">society</g> and the state.
Traditionally traced to classical liberalism’s public-private divide, there are now several theoretical conceptions of privacy that collaborate and sometimes contend. India’s privacy law is evolving in response to four types of privacy claims: against the press, against state surveillance, for decisional autonomy and in relation to personal information. The issue of individual privacy should be seen in the context of the gross violation of this basic human right across the globe. The clandestine global surveillance program of America’s National Security Agency (NSA) brought into <g data-gr-id="48">limelight</g> this serious encroachment upon individual rights. It is also true that the limit of an individual’s affair in his personal, social and other areas has been violated even on domestic grounds. One only needs to look at the Nira Radia controversy to provide a pertinent set of examples.
To be fair, the Attorney-General’s argument was a response to the claim of UID’s opponents, which is that it provides insufficient safeguards to protect individual privacy. Its ramifications, however, are much broader. Privacy concerns are central to a new DNA profiling bill that will soon be tabled before Parliament. Additionally, in an age of mass surveillance programs such as the Central Monitoring System and the Netra, which exist in a shadowy, extra-legal realm sans parliamentary debate or statutory sanction, the questions of whether and to what extent Indians have constitutional rights to privacy are in immediate need of a debate. If the Attorney-General is right, then citizens have no independent claim against intrusive surveillance, data mining, or DNA profiling but must depend upon Parliament to pass a long-stalled Privacy Bill into law. If the Attorney-General is wrong, however, then from the interception of my emails or the storage of my DNA, the government is constrained by the Constitution at every step, whether it is an executive action or a parliamentary law.
At first, the Attorney-General’s argument might sound intuitively plausible. A quick glance at the Fundamental Rights chapter of the Constitution reveals no mention of the word “privacy”, or anything that looks like a “right to privacy”. Constitutions, however, are more than just literal readings of texts whose meanings must be deemed to have been fixed for all time at the moment of their creation.
The limited foresight of the framers, who were men and women of their own time, and indeed, the limits of language itself, require constitutions to be interpreted so that they remain meaningful across varying historical, political and social contexts. The rights to freedom of expression, freedom of association, freedom of movement, personal liberty, and the freedom of conscience, all need the breathing space of privacy to survive and flourish. Overarching surveillance not only breeds conformity but chills speech and association, as people increasingly begin to self-censor and dissociate themselves from politically or socially unpopular relationships. Privacy is that part of the unwritten constitution that structures and makes meaningful the great guarantees of our written Constitution, and is therefore as much a right as the latter.
There is, in conclusion, no warrant for the Attorney-General’s argument that Indian citizens have no right to privacy. The right to privacy flows from a structural reading of the Fundamental Rights chapter and has been established as an integral part of constitutional jurisprudence over the last 30 years. It is essential to any meaningful enjoyment of the expressly guaranteed rights in the Constitution. And the cases relied upon by the Attorney-General for his argument <g data-gr-id="40">cleaves</g> to a philosophy of rights that the Supreme Court abandoned 45 years ago.