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Right to Privacy is needed but it’s not absolute


Recently, the Supreme Court (SC) passed the ‘Right to Privacy’ (RTP) by making it a part of fundamental rights in the Indian constitution. Chief Justice J.S. Khehar along with 8 other members of the Supreme Court announced the landmark judgment by assessing that ‘Right to Privacy is inalienable to the dignity and integrity of the individual and is protected under Article 21 that envisages protection of life and personal liberty.’

Of course, the SC also assessed that RTP is not an absolute right. In accordance with the spirit of the constitution, rights cannot be isolated from responsibilities. But nevertheless, RTP is crucial since as Justice Khehar argued, ‘What I do within the confines of my bedroom is my private affair.’ But then again, if the acts that one does in the bedroom amount to human trafficking [Art. 23 (1)] or pedophile behavior, then RTP is not applicable. Nevertheless, scenes of police forces barging into a room where 2 consenting adults are engaged in sexual intercourse will surely see a decline. The scenes that were shown in the movie ‘Masaan’ may soon come to an end. The Hindu Yuva Vahini cannot, under the garb of ‘Sanskriti’ or ‘Charitra-Nirmaan’, take the law into their hands as they did so earlier in May 2017.

I’m not a law or constitutional expert but when the SC talks about reasonable restrictions, there are a lot of areas where law enforcement agencies can swoop in and hold a person or group of persons accountable for any legal or constitutional violations which they engage in.  

Nevertheless, what RTP gives to Indian citizens is the right to disclose or withhold information given to banks or insurance companies. None of these two institutions can take information without the explicit permission of the applicant and if information is obtained from applicant, there must be suitable measure to ensure that data is not leaked, distributed or misused in any manner whatsoever. SC has mentioned suitable data protection is a must.

In the face of increasing cyber attacks such as the ransom ware WannaCry and Peta malware attacks that had severely compromised hospital, administrative and national security mechanisms worldwide, cyber security and cloud protection systems cannot be taken lightly. Aadhaar data too has come under scrutiny for its poor data protection mechanisms.

Moreover, Aadhaar cards under RTP face a challenge since many petitioners have alleged that Aadhaar data can lead to increased intrusion of the Indian government and its agencies into the public and even personal lives of citizens without the latter’s consent. The SC will be taking this matter up soon. However as Justice D Y Chandrachud mentioned, “Data mining with the objective of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. However, data collected by the state must be utilized for legitimate purposes and not in an unauthorized manner for extraneous purposes.”

RTP also ensures that a person can choose to keep his/her sexual orientation a secret. Any discrimination on the basis of sex or gender behavior is also a punishable offence. This also means that Article 377, that criminalizes homosexuality, may soon be revoked since a person’s sexual preference or perspective is a private affair and the govt. has no right to interfere unless the act committed by the person concerned results in mental, physical or psychological damage or death of another person. In this case, RTP is again void.      

A woman’s decision to abort her fetus or to have a child also comes under RTP. But then again, abortion is subject to Medical Termination of Pregnancy Act 2014.   

There are countless cases that can show the latent and manifest imperfections of  RTP. There are a lot of grey areas. But the judgment of the apex court is certainly praiseworthy. Information dissemination amongst the masses as well as just and fair implementation needs to follow the RTP act. Only then can the ‘Act’ act as a shield for harassed citizens and as a lesson for enforcement agencies.   

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