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A Laxman Rekha Beyond Which State Can’t Intrude

In a landmark judgement a nine-member bench of the Supreme Court headed by Chief Justice J S Khehar unanimously decided that right to privacy is a fundamental right intrinsic to right to life.  The order is going to have far-reaching implications for the life of citizens, as “privacy” covers a world of areas and issues, ranging from sharing of personal details, food habits and sexual orientation. The order is going to become a reference point in a lot of matters. The verdict is a major setback for the Modi government, which had argued that the Constitution does not guarantee individual privacy as an inalienable fundamental right. The court’s ruling came on a multi-party petition against the mandatory use of Aadhar as an infringement of privacy. The government had been asking people to link Aadhar card to bank accounts, income tax accounts and so on. Now there will be restrictions on these steps.

The judgement opens up new vistas of freedom for individuals. It allows individuals to enjoy private life and other freedoms enshrined in the Constitution without public authorities or private organizations having any right to curtail them. The ruling is going to clear the road for de-criminalization of homosexuality as the choice of sexual partners has been decided as private choice. The court has observed that the right to privacy cannot be denied even if a small fraction of the population exercises a particular choice. The judgement also firmly lays down that an individual has right to wear whatever he or she wants and eat whatever he or she wants. In the coming years there will be a host of issues that would be tested against the ruling to decide whether government orders or steps violate right to privacy and personal choice.

The verdict must be interpreted as a response to the changing needs of society. This judgement has thrown out earlier judgements which did not uphold right to privacy. The judgement said that privacy included at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. It remains to be seen how the central government and civil society will go about it in the days ahead to interpret and implement the order in letter and spirit. With the court rejecting the central government’s contention that there was no fundamental or general right to privacy under the Constitution the government may try to interpret the judgement to suit its policies, which could lead to further legal battle in courts in days ahead, particularly in view of the bench asking the government to examine and put in place a ‘robust regime’ for data protection, especially in connection with Aadhar. It has been government’s contention that the Aadhar programme, set up in 2009 by the UPA government, did not pose a threat to civil liberties. On the contrary, it was essential for all services including tax returns, opening bank accounts and securing loans, pensions and cash transfers for those entitled to welfare schemes.

It has been argued by critics that the Aadhar card links allow profiling of individuals because it creates a comprehensive profile of a person’s fingerprints, spending habits, property owned by them and a host of other details of personal information. With bank accounts, income tax and other accounts also linked to them, there are fears the data could be misused by private operators or hackers. There have been recurring reports of Aadhar details being accidentally released, including on government websites. The denial of UIDAI, the agency that governs Aadhar, is not very assuring. The court has directed the government to ensure a “robust regime for data protection” that would deliver “a careful and sensitive balance between individual interests and legitimate concerns of the state.” The Modi government has latched on to this proviso and says every fundamental right comes with “reasonable restrictions.”  We have to see how the judgement works in restricting the use of state power in collecting personal information. For one, the bench recognises that there are “compelling state interests” in collecting such information. However, compelling state interests should be restricted to national security, prevention and investigation of crime and ensuring social welfare benefits reach those they are intended for. But the highest court of the land has drawn a Laxman Rekha beyond which the state authorities cannot go as it would be seen as infringement of right to privacy. The nine judges of the Supreme Court have given a judgement in tune with the times. These are times to give citizens more personal liberties, not to take away whatever they have.

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