Even as the right to privacy is still being debated, the Supreme Court of India has proposed a three tier approach to understanding whether it is a fundamental right or not.
The ongoing legal debate around privacy, what it entails and its standing as a fundamental right in India is beginning to take a concrete form even as the Supreme Court has reserved its judgement for the end of the month. The current concerns over privacy that has reached the highest court of the country, came after citizens raised numerous issues pertaining to the ‘Aadhar’ card, a unique identification system that takes biometrics of a person into account.
As India lacks a clear cut legislation identifying privacy as a fundamental right, the country’s past legal precedents of recognising it as such as well as its status as a signatory to several international charters containing the same, have led expectations on the petitioners’ part, which perhaps may not be met. In the Supreme Court yesterday, the different aspects of privacy were brought up by members of the nine judge-constitutional bench. A three-tier classification and a graded approach was suggested. All parties to this legal battle have expressed similarity on recognising the importance of a right to privacy as intrinsic to an individual, but whether it is fundamental in nature remains doubtful.
Justice D Y Chandrachud from the court bench proposed, “The first zone could be the most intimate zone of privacy concerning marriage, sexuality, relations with family and the law should frown upon any intrusion. The second zone would be the private zone, which involved parting of personal data by use of credit card, social networking platforms, income tax declarations. In this sphere, sharing of personal data by an individual will be used only for the purpose for which it is shared by an individual. The third is the public zone where privacy protection requires minimal regulation. Here, the personal data shared will not mean the right to privacy is surrendered. The individual will retain his privacy to body and mind.”
— Tenreads India (@TenreadsIN) August 3, 2017
Legal recognition pending
Internationally, bodies such as the European Union, employ extensive data protection and privacy laws, with an enforcement of new laws on all member states. These set of laws provide clarity regarding the boundaries set for the state, while also highlighting exceptions, “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
In comparison to other countries however, India lacks a comprehensive law that defines the boundaries between an individual and another, especially the individual and the state, which is crucial to understanding the basic relationship of the citizen with the state. As a concern over privacy grows, the Supreme Court heard echoes of this sentiment from a consul from the petitioners’ side, who stated, “The locus of the Constitution lies with the individual. The citizen is above the state. If there is no citizen, there is no state. And the state is the creation of the Constitution.”