ISSN : 2581-8465
Author : Mr. Rana Saurav Kr Singh & Ms.Shubhangi Singh
The ICFAI Law School, dehradun.
ABSTRACT
Privacy is something that enables an individual to seclude them and any of their information from others. Privacy may also be any bodily integrity along with the information.privacy. Right to privacy is animportant facet of the Right to life and personal liberty, article 21 of constitution of India.The right to privacy in any event will necessarily have to go through a process of a case-by-case develop men.
The right to privacy, in India, was recognized in 1954 in the case of M.P. Sharma and others vs. Satish Chandra. It was held by the bench that, ‘the drafters of constitution did not intend to subject the power of search and seizure to a fundamental right and privacy. It was also held that Right to Privacy is not a fundamental right.
In some cases Government do not provide the right to privacy stating that it is not an absolute right.
Here in this paper we are going to discuss about the concept of right to privacy, what is aadhar card and its pros and cons regarding right to privacy.
In 2010 Aadhar was launched. Aadhar is the unique authenticated identity proof of the individuals after the issuing of the A adhar the, main issue generated was that it became one of the main reason to violet the privacy of individual due to some loop holes.
INTRODUCTION
Any personal information of individuals or ability of individuals is termed as privacy and also to express themselves selectively. The right determines the nonintervention of secret surveillance and the protection of an individual’s information.
The constitutional right to privacy protects the liberty of people to make certain crucial decisions regarding their well-being without government coercion, intimidation, or interference. Such crucial decisions may concern religious faith, moral values, political affiliation, marriage, procreation, or death. The federal Constitution guarantees the right of individuals to make these decisions according to their own conscience and beliefs. The government is not constitutionally permitted to regulate such deeply personal matters.
All the people of India have the right to privacy, the protection of the privacy to the other because if the privacy is infringed then the person’s reputation is harmed. Everyone has the right to be respected for his private and family life, his home and his correspondence and no one shall be subjected to arbitrary or unlawful interference with his privacy and also no one can do unlawful attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Privacy is something that enables an individual to seclude them and any of their information from others. Any bodily integrity along with the information also contributes to privacy.
The right to privacy provides a right of area to an individual stating the things that can be accessed by others and also to control those extent, manner and timing of the use of those parts that we choose to disclose. Various governmental and private actions that threaten the Privacy are also restrained. The constitution also provides for the right to privacy. Right to privacy is an important facet of the Right to life and personal liberty, article 21 of constitution of India.
Right to privacy is not absolute
Only in such exceptional circumstances, like to protect the national interest, however, an individual’s right to privacy can be superseded. The Central government passed the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, that allow the Secretary in the Home Ministry/Home Departments to authorize agencies to intercept, decrypt or monitor Internet traffic or electronic data. In emergency situations, such approval can be given by a person not below the Joint Secretary in the Indian government. The importance of reserving such powers to conduct surveillance cannot be undermined, in today’s times, when fake news and illegal activities such as cyber terrorism on the dark web are on the rise
There should be some reasonable basis or some tangible evidence to initiate or seek approval for interception by State authorities. This is the position in the U.S. Any action without such evidence or basis would be struck down by courts as arbitrary, or invasive of one’s right to privacy. Therefore, the framework of the prescribed procedure needs to be adhered to, and its implementation needs conformance, both in letter and spirit. Any digression from the ethical and legal parameters set by law would be tantamount to a deliberate invasion of citizens’ privacy and make India a surveillance state
Importance of Right to privacy is important as our personal information can be misused by someone. For example –
- Social sites like in Facebook anyone can easily access to our personal information’s thereby harming our privacy, our right must be protected so that the people whom we want may only get to know about us.
- As the adhar card is linked with various things , once anyone gets accessed to others adhar may easily generate any information about that person, even the more crucial ones. Aadhar is also linked with our bank accounts which also means that our bank accounts are also not safe if our adhar is hacked.
- Surveillance camera where ever installed must be known to the persons working there i.e. in any organizations, companies, educational institutions etc.. As personal activities of any person must not publicized or recorded , one must have its own space.
- Keeping record of ones work or internet browser history harms the privacy of a person. That’s why right to privacy must be provided to them
- Policemen also can’t enter anyone’s home as just that person has some record in history.
BACKGROUND
It 1963 in the case of Kharak Singh v. State of U.P. the Supreme Court had the occasion to consider the ambit and scope of this right when the power of surveillance conferred on the police by the provisions of the U.P. Police Regulations came to be challenged as being violative of Articles 19(1)(d) and Article 21 of the Constitution. The Court repelled the argument of infringement of freedom guaranteed under Article 19(1)(d) of the Constitution, and the attempt to ascertain the movements of an individual was held not to be an infringement of any fundamental right. The minority judgment, however, emphasized the need for recognition of such a right as it was an essential ingredient of personal liberty.
Near about a decade later the Supreme Court seems to have realized the need for recognizing the right to privacy in Govind v. State of M.P. wherein Mathew, J. as Lord Denning indicated envisaged its gradual development thus:
“The right to privacy in any event will necessarily have to go through a process of a case-by-case development.
AADHAR CARD
Aadhar was launched in 2010 by the then PM Manmohan Singh and then Congress President Sonia Gandhi. During the launch, Sonia hailed the project as a part of Rajiv Gandhi’s ‘vision’, adding that the project was aimed at inclusive growth. 1,000 villagers in a tiny place called Tembhali in Maharashtra were the first people to get their Aadhaar cards in the entire country. The ceremony was conducted with such fanfare that the entire village got a complete makeover for it. The program was introduced in Karnataka on October 8 with the then CM BS Yeddyurappa being the first to enroll for it.
To the former UIDAI chairman Nandan Nilekani, it was more than just a number,
it was an ambition: He claimed that in a mere four years, over 600 million
people would have an Aadhaar card and that the UIDAI was in talks with the
Finance Ministry to make Aadhaar the KYC document of choice for opening village
accounts. Nilekani was not unfounded in his claims. In less than five months of
the program’s launch, over 16.7 lakh Aadhaar numbers had been generated and
nearly half of it came from Karnataka alone. By the time the end of the year
rolled around, 10 crore people had enrolled for Aadhaar with 75 lakh of them
from Karnataka
Trouble began to foment a little over a year after Aadhaar’s introduction when
the MHA expressed apprehension that enrollments could be faked due to loopholes
in the process. In 2012, the first signs of Aadhaar becoming mandatory came to
light, when three oil companies initiated a pilot project in Mysore to have LPG
refills linked to the ID. Then, in 2013, banks began asking for Aadhaar to
provide services. In 2013, the 12-digit ID became the ID to link with bank
accounts for getting LPG subsidies
In September 2013, the SC began hearing the first of what would become a series of Aadhaar petitions. The petition was to examine the usefulness of the Aadhaar card. Less than two weeks later, the court ruled that a lack of Aadhaar was not grounds to deprive people of any benefit or service. Responding to the verdict, then Minister of Petroleum and Natural Gas Veerappa Moily said the Aadhaar-linked Direct Benefits.. Transfer (DBT) scheme for subsidised LPG supply would continue and the government would move the apex court for a ‘correction’ in the order.
In October, the union cabinet cleared the National Identification Authority of India Bill, giving statutory status to the UIDAI. Shortly after, the UIDAI became one in a long line of petitioners before the apex court in favour of the Aadhaar programme.Months before the Congress government in the Centre would fall, the apex court issued a directive to have any and all instructions that made Aadhaar mandatory to be withdrawn.
.After coming into power in 2014, Narendra Modi decided to review the
progress of the Aadhaar project and discussed the possibility of using the
platform to resume the DBT of subsidised schemes In the coming months, the
government mooted making Aadhaar mandatory for various services, including
passports (though it backtracked on that shortly after), PAN cards and Jan Dhan
accounts, but the apex court was unconvinced. The Centre eventually said that
Aadhaar was not mandatory for public services
The year 2015 saw a lengthy back and forth between the apex court and the Centre on the Aadhaar matter, with the Centre saying that Aadhaar couldn’t be rolled back and the apex court directing the Centre to ensure Aadhaar did not become mandatory and refusing to alter its order and expand the uses of the ID card
Aadhar Card and Right To Privacy – Can They Co-Exist?
- In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.
- Legislation- it is imperative that the Union Government enact a privacy legislation that clearly defines the rights of citizens and it should be consistent with the provision of the Constitution.
- The government should factor in privacy risks and include procedures and systems to protect citizen information in any system of data collection.
- It should create an institutional mechanism such as the Privacy Commissioner to prevent unauthorized disclosure of or access to such data.
- Our national cyber cell should be made well capable of dealing with any cyber-attack in the shortest time.
- We need to educate people on the risks involved and highlight examples of ID thefts and fraud.
- The government should recognize all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy.
- We need to take a level-headed approach and ensure that ample safeguards are put in place for data protection and privacy.
Lack of Security
Several incidents took place that showed that there is some lack security regarding the aadhaar card, example-
- Former Indian Cricket team skipper, Mahindra Singh Dhoni’s Aadhaar account number got posted on Instagram..The Aadhaar center had posted the picture, in hopes of getting more people to register for Aadhaar services, this showed us that independent agencies authorized to collect Aadhaar information from the public are not regulated enough with respect to privacy and disclosure of private Aadhaar information. The agency is blacklisted for 10 years.
- Errors are common when filing for Government documents. Errors can be made by the applicant during application for Aadhaar, by the issuing authority, by the publishing/printing partner, a transcription error, initials in names, etc. Errors can take the form of a mismatch between information, incorrect name, photo, address, relationship, gender, email address, mobile number, etc.
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. is a landmark judgment of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental constitutional right under Articles 14, 19 and 21 of the Constitution of India.
The judgement of the nine-judge constitution bench contains six concurring opinions affirming the right to privacy of Indian citizens. It explicitly overrules previous judgements of the Supreme Court in Kharak Singh vs State of UP and M.P Sharma vs Union of India, which had held that there is no fundamental right to privacy under the Indian Constitution
FACTS- The government of India decided to provide to all its citizens a unique identity called Aadhar which is card containing 12 digit Aadhar number. The registration for this card was made mandatory so as to enable the people to file tax returns, opening bank accounts etc. However, the registration procedure for such card required the citizens to give their biometrics such as fingerprints, iris scans etc. Retired judge justice K.S Puttaswamy filed a petition challenging the constitutional validity of this Aadhar project contending that there was a violation of right to privacy of the citizens since, the registration for Aadhar is made mandatory. As a result of which all those who don’t even want to register themselves, are not left with any option. Moreover, there is a lack of data protection laws in India and hence, there are chances that the private information of the people may be leaked if proper care is not taken. This will lead to violation of right to privacy of the individuals.
Judgement and analysis
The Judgment of the Apex Court that Right to privacy is a fundamental right is correct. However, it is true that privacy cannot be an absolute right. For instance, surveillance is important to prevent crime in the society. An individual cannot simply argue that his privacy is being violated if larger public interest requires keeping him/her under the surveillance. The major question is that the Supreme Court of India, unlike the USA, has still not recognized the doctrine of waiver, which facilitates that an individual can waive off the fundamental rights if larger public interest requires so. The reason behind this being that it would defeat the purpose of the Constitution which implies that fundamental rights are absolute. So, how can privacy be a fundamental right if it is not absolute? As already mentioned above, privacy is not only a right, it is a natural and inalienable right. It cannot be denied the status of a fundamental right because liberty without privacy and dignity would be of no use.
THE BENCH
The high profile bench that will decide the question of privacy. Here are the judges:
- JS Khehar
- . J Chlameswar
- SA Bobde
- RK Agarwal
- RF Nariman
- AM Sapre
- DY Chandrachud
- SK Kaul
- S Abdul Nazeer
Denying the right to privacy
This month, the Ministry of Home Affairs issued an order granting authority to 10 Central agencies, including the Delhi Commissioner of Police, the Central Bureau of Investigation (CBI), and the Directorate of Revenue Intelligence, to pry on individual computers and their receipts and transmissions “under powers conferred on it by sub-section 1 of Section 69 of the Information Technology Act, 2000 (21 of 2000), read with Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009”. It has authorized these “security and intelligence agencies” to intercept, monitor and decrypt any “information generated, transmitted, received or stored in any computer resource”. This is seen as an extreme measure to deny people their right to privacy — more so because agencies such as the Delhi Police, the CBI, and the Directorate of Revenue Intelligence cannot be strictly termed as organizations concerned with homeland security. Internal security is the main excuse being given for issuing such a directive. Given that the Lok Sabha election is to take place next year, the executive order seems to hint at a different game being played.
The sole fascination of this government seems to be collection of data. With an unquenchable thirst for information, the government at the Centre and most governments in the States have set out on a surveillance race. This will be the fastest process to turn India into a police state. While politicians change every five years, the country’s governance system is being left at the mercy of bureaucrats. It is this class of people which is pushing the ‘police state’ agenda. This especially becomes easy when the democratically elected leader starts suspecting every other elected member as well as citizens. Taking advantage of this mindset of paranoia and isolation, underlined with the greed for power, the bureaucrat seems the most trustworthy and harmless. It is obvious that he will not aspire for the ultimate throne that these apex politicians desire. This makes him a non-adversary