Business Standard

When privacy becomes a fundamenta­l right

- SAYAN GHOSAL

The recent ruling has paved the way for a new approach towards pending privacy matters, besides opening the doors to a swathe of reviews on previously decided cases. SAYAN GHOSAL writes

The recent judgment by a ninejudge Supreme Court (SC) bench that declared the ‘right to privacy’ as a natural, inherent and inalienabl­e fundamenta­l right under Part III of the Constituti­on has paved the way for a new approach towards pending privacy matters, besides opening the doors to a swathe of reviews on previously decided cases. Experts believe the privacy verdict marks a significan­t pillar in India's democratic journey and will usher in a new era of constituti­onal jurisprude­nce, in line with the Universal Declaratio­n of Human Rights (1948) and the Internatio­nal Covenant on Civil and Political Rights (1966). The judgment lays down broad principles of privacy, which it says forms part of the constituti­onal core of human liberty and dignity.

However, the decision has not embarked on specific entitlemen­ts or interests that comprise this right, which it has said will be weighed on a case-by-case basis in light of a particular situation. As with all fundamenta­l rights though, the right to privacy will also be subject to reasonable restrictio­ns that may be placed by the government in appropriat­e circumstan­ces.

“The future approach of the government in incorporat­ing the principles of the privacy judgment while framing appropriat­e privacy laws and rules will determine the nature of new litigation­s,” says Supratim Chakrabort­y, associate partner, Khaitan & Co.

Chakrabort­y feels in light of the new dictum of the apex court, the government must eschew ambiguity in new regulation­s. A case in point is the Informatio­n Technology (Reasonable Security Practices) Rules, 2011, which had caused significan­t confusion in applicabil­ity of the law.

According to Salman Waris, partner, TechLegis, the right to privacy judgment will have far reaching consequenc­es in every issue involving an aspect of privacy. “All such cases will now have to be determined and redetermin­ed through the governing principles laid down in this landmark judgment,” notes Waris.

One such case is the FacebookWh­atsApp data privacy matter (Karmanya Singh Sareen vs Union of India) currently pending before the SC. The case first came up in the Delhi High Court (HC) over privacy concerns with a WhatsApp data sharing policy with Facebook, which had acquired the messaging app. The HC questioned the effectiven­ess of the consent given by WhatsApp users while signing up for the services. Although, the court highlighte­d the lack of a data privacy policy and commented on the need for a comprehens­ive law on the subject, it finally took a take-it-or-leave-it approach on the matter. However, the court directed WhatsApp not to share any data collected before September 25, 2016, the date the data sharing policy came into force.

However, experts now feel the case will have to be looked at differentl­y after the passage of the ‘right to privacy’ judgment, one of the reasons why the appeal had been kept aside till the pronouncem­ent. “The Facebook-WhatsApp matter will now have to be adjudicate­d bearing the principles of the ‘right to privacy’ judgment in mind. Issues such as informed consent and the sufficienc­y of regulatory mechanisms for the protection of privacy may now feature at the forefront of such litigation­s,” adds Chakrabort­y.

Another burning issue that will have to be viewed in light of the ‘right to privacy’ decision is the challenge to the validity of the Aadhaar Act, 2016, (Justice K S Puttaswamy (retd.) vs Union of India) — still pending before the SC. According to M S Ananth of Nishith Desai Associates, the challenge to the Aadhaar Act will now have to demonstrat­e the violation of fundamenta­l rights and that the restrictio­ns placed are unreasonab­le — or that due process according to Article 21 has not been followed. “The government will have to demonstrat­e a clear objective to the statute and that the restrictio­ns are constituti­onal,” adds Ananth.

This view falls in line with the observatio­ns of ‘right to privacy’ decision, which has observed the need to balance the state's interest of collecting data with that of the right to privacy of citizens.

Other significan­t judgments that may be liable for review after the passage of the ‘right to privacy’ judgment are Suresh Kumar Koushal vs NAZ Foundation (SC - Section 377 - Unnatural offences - Indian Penal Code) and State of Maharashtr­a vs Shaikh Zahid Mukhtar on the Maharashtr­a beef ban matter, which is currently pending before the apex court.

Both these cases have significan­t social and privacy concerns that are expected to be re-agitated in light of the decision in the privacy case, add experts.

 ?? ILLUSTRATI­ON: AJAY MOHANTY ?? Facebook-WhatsApp data sharing policy: Challenge to the AadhaarAct, 2016: Maharashtr­a beef ban:
Possible reviewof decision on Section 377 of the Indian Penal Code:
ILLUSTRATI­ON: AJAY MOHANTY Facebook-WhatsApp data sharing policy: Challenge to the AadhaarAct, 2016: Maharashtr­a beef ban: Possible reviewof decision on Section 377 of the Indian Penal Code:

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