Recently there has been numerous incursion by govt against right to privacy of citizens which has been recognized as one of the fundamental rights by many countries.
In defending Aadhar where govt collects biometric data of citizens without any act of Parliament regulating it, Attorney General submitted that ‘Right to Privacy’ is not fundamental right and be breached by govt. However Attorney General was only replying to the question whether making people part with personal data was not an intrusion into their privacy, and saying that there is a need to defend the Aadhaar scheme. Still the government’s stand gives rise to the doubt whether it is truly committed to protecting its citizens from violations of their privacy by the unauthorised use of information provided by them.
Legislation and SC verdicts on privacy
The Constitution does not specify ‘right to privacy’ as a fundamental right, but the law on the subject has evolved considerably in India, and privacy is now seen as an ingredient of personal liberty. SC 6 judge bench in Khadak Singh case 1962 had ruled that privacy is not right of citizen – however the context of case was right to private property rather than privacy. In other cases while the Supreme Court has held privacy to be a fundamental right, it is restricted to certain aspects of a person’s life. These aspects include the privacy of one’s home, family, marriage, motherhood, procreation and child-rearing.
UN charter of Human rights of 1948 identifies privacy as one of the fundamental rights of the humans. India is signatory of the charter. Other major countries like US – does not recognizes privacy as right but it has emerged as right of citizens due to court case decisions and precedents and hence is recognized widely now. Britain has came openly with right to privacy for citizens with explicit law in 1998. Brazil a member of BRICS has instituted protection of privacy in its constitution.
Article 8 of the European Convention on Human Rights, which was drafted and adopted by the Council of Europe in 1950 and meanwhile covers the whole European continent protects the right to respect for private life.
AP Shah commission’s recommendations
Justice A. P. Shah panel submitted in 2012 has recommended an over-arching law to protect privacy and personal data in the private and public spheres. Report has listed certain exceptions in the right to privacy such as national security, public order, disclosure in public interest, prevention, detection, investigation and prosecution of criminal offences and protection of the individual or of the rights of freedom of others
Recommendations of the Expert Group on Privacy
- New legislation on privacy should ensure that safeguards are technology neutral. This means that the enactment should provide protections that are applicable to information, regardless of the manner in which it is stored: digital or physical form.
- The new legislation should protect all types of privacy, such as bodily privacy (DNA and physical privacy); privacy against surveillance (unauthorised interception, audio and video surveillance); and data protection.
- The safeguards under the Bill should apply to both government and private sector entities.
- There should be an office of a ‘Privacy Commissioner’ at both the central and regional level.
- There should be Self-Regulating Organisations set up by the industry. These organisations would develop a baseline legal framework that protects and enforces an individual’s right to privacy. The standards developed by the organisations would have to be approved by the Commissioner.
- The legislation should ensure that entities that collect and process data would be accountable for these processes and the use to which the data is put. This, according to the Group, would ensure that the privacy of the data subject is guaranteed.
Risks to privacy
Government departments collect data under various legislations moreover new initiatives like National e-governance plan and AADHAR envisage creation of electronic database of information of citizen. Under the Passport Act, 1967 and the Motor Vehicles Act, 1988 persons have to give details of their address, date of birth etc. These enactments do not provide safeguards against access and use of the information by third parties. Similarly, information regarding ownership of property and taxes paid are publicly available on the MCD website.
Aadhaar which collects personal details of individual along with biometric data is susceptible to abuse as it is not regulated by any act of Parliament. Activists allege that Aadhaar is being ushered through back door with untold implication over privacy of citizens. With incorporation of biometric data in the Aadhaar there is possibility that it would be used for tracking citizens who are considered as nuisance to government. There is also possibility that courts may force authorities to open Aadhaar database for law enforcement and criminal investigation, which would be blatant violation of right of citizens. Aadhar implication has grown with recent SC verdict that it can be used voluntarily for social schemes. Govt is using Aadhar as identification tool to minimize wastage in social schemes however its implementation is being coerced in many ways
- LPG subsidy disbursal has been linked to Bank accounts through Aadhaar – while not mandatory but govt has issued directions that this should be implemented uniformly by year end
- Registering business now require Aadhaar number
- EC has asked voters to link their Voter IDs with Aadhar to weeed out duplicates and discrepancies in the voter list
Identifying citizens for providing various services, maintaining security and crime-related surveillance and performing governance functions, all involve the collection of information. In recent years, owing to technological developments and emerging administrative challenges, several national programmes and schemes are being implemented through information technology platforms, using computerised data collected from citizens. With more and more transactions being done over the Internet, such information is vulnerable to theft and misuse. Therefore, it is imperative that any system of data collection should factor in privacy risks and include procedures and systems to protect citizen information.
The government faces a formidable legal challenge in implementing its ambitious unique identification programme. Pleas have been made before the Supreme Court questioning the lack of a statutory basis for the collection of biometric details, and the government has to meet this point to the court’s satisfaction. Instead of arguing that privacy is not a fundamental right, it would do well to assure the court that it has the technology and systems to protect the data collected. And that it would do everything possible to prevent unauthorised disclosure of or access to such data. A Group of Experts appointed by the Planning Commission and headed by Justice (retd.) A.P. Shah, came out with a comprehensive report in 2012 containing a framework for a Privacy Act. Such a law, it said, should recognise 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. Underscoring a set of privacy principles, the committee said the underlying idea should be that the data controller should be accountable for the collection, processing and use to which data are put. 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.
References <http://www.thehindu.com/opinion/editorial/privacy-not-a-fundamental-right-says-centre/article7457168.ece>, <http://www.thehindubusinessline.com/economy/ninepoint-code-set-out-to-safeguard-personal-information/article4009850.ece>, <https://en.wikipedia.org/wiki/Privacy_law>, <http://www.prsindia.org/theprsblog/?tag=privacy>, RSTV Debate