DNA Edit: Privacy vs public safety

Over half-a-century after the Supreme Court decided that privacy is not a fundamental right, a nine-judge bench of the apex court once again dived deep into the heart of the matter to settle the contentious debate, once and for all. Irrespective of whether the SC does or does not uphold privacy as an inalienable right guaranteed to all by the Constitution, its judgment will have far-reaching repercussions for the citizens as well as for the delivery of public distribution schemes in India. To give some background, this case is an offshoot of a petition filed in the apex court claiming that Aadhaar is violative of a person’s right to privacy.

It was while hearing the arguments in the case questioning Aadhaar’s legality that a five-judge Constitution bench, led by the Chief Justice of India JS Khehar, decided it will have to primarily determine if the right to privacy can be deemed a fundamental right. In July 2015, it was former Attorney General Mukul Rohatgi who had argued that there was no fundamental right to privacy. This is partly true given that there is no express mention of privacy in the Constitution or of a right to privacy.

However, Constitutions are living documents whose purview have been interpreted by the courts in the past to guarantee to the citizenry a host of other rights that have not been explicitly spelled out. Many of the fundamental rights such as the right to life, liberty and free speech will be of little substance in an Orwellian State bent on maintaining national honour. The SC has shown that it is well aware while deciding the case on its merits, that it will also need to secure people from an excessive intrusion of the State and its multipronged authorities. In Gobind vs State of Madhya Pradesh, the SC in 1975 had held that “the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists”.

After the Gobind case, a rich stream of jurisprudence has successfully checked State surveillance as well as held interrogation methods like narco-analysis to be illegal. However, the Gobind case also mentions “compelling state interest” as an exception to the right to privacy of an individual. An individual’s right to privacy can be infringed if his actions are likely to disrupt national security or public safety. Necessarily, the right to monitor individuals and to put their actions under surveillance rests with the government. But this right should not be unchecked or unlimited, in order to maintain India’s democratic fibre.