Privacy is a fundamental right with qualifications, Centre tells apex court

Note4students

Mains Paper 2: Governance | Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

From UPSC perspective, following thing are important:

Prelims level: Read the attached story

Mains level: Right to privacy is a hot topic these days. We should wait for the final judgement on the issue. But understanding government stand is a must.


News

Union Government stand on the issue

  1. Government told the SC that right to privacy is a fundamental right but it is a “wholly qualified right”
  2. Government stand means ‘right to privacy’ could be subject to reasonable restrictions

U-turn

  1. This is contrary to the government’s earlier stand that citizens cannot invoke privacy as a fundamental right as the Constitution does not provide for it

Does this covers the issue related to Aadhar?

  1. Government also made it clear that the submission was not intended to cover the challenge to Aadhaar
  2. It means that those challenging it cannot claim that it violates right to privacy

Limitations to privacy, says SC, petitioner says embedded in life, liberty

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Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, following things are important:

Prelims level: Fundamental rights

Mains level: Should Right to Privacy be made a Fundamental Right under our constitution?


News

Context

  • A nine-judge Constitution Bench of the Supreme Court, which began hearing arguments Wednesday to determine whether right to privacy is a fundamental right under the Constitution.

What court said?

  1. Privacy is not so absolute or overarching to prevent the state from legislating.
  2. If privacy is right to make choice, choice in what area — family, sexual orientation, gender identity, surveillance…what all?
  3. Court was trying to understand whether it should define the contours of the right.
  4. For instance, right to cohabit with wife is right to privacy but right to send children to school isn’t.
  5. There is some element of autonomy in the exercise of liberty which does not lie in the realm of liberty. It is not necessary that everything that falls within liberty also falls within privacy.
  6. Privacy rights are not only vertical (not only against state action) but also horizontal (against society) and imposes an obligation on the state to make laws to protect one’s existence in society.

Petitioner’s argument for Right to privacy

  1. Privacy was embedded in all processes of human life.
  2. Liberty is pre-existing law. All that the Constitution did is to enumerate it.
  3. Privacy was embedded in the expressions liberty and dignity as appearing in the Preamble to the Constitution.
  4. Liberty is inalienable, all choices are a part of the exercise of liberty. Humans cannot exist without liberty.
  5. Liberty is heart and soul of the Constitution.
  6. Privacy, was not something that needs to be carved out as every human action is a part of his/her privacy.
  7. Non-mentioning of privacy rights explicitly in the fundamental rights does not signify it does not exist. It can be deduced from other fundamental rights mentioned in Part III of the Constitution. Freedom of press too was not mentioned but deduced so.

Right to Privacy and Data protection

  1. Right of privacy is not necessarily coexistent with data protection.
  2. This was why even Europe, had to bring in two separate conventions, one dealing with privacy and another with data protection.
  3. “Whether we like it or not, we live in a world of big data and the state is entitled to regulate privacy. Privacy is not so absolute or overarching to prevent the state from legislating” –Court said.

 

SC to decide whether privacy is a basic right

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Note4students

Mains Paper 2: Polity | Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

From UPSC perspective, following things are important:

Prelims level: Fundamental rights.

Mains level: Should Right to Privacy be made a Fundamental Right under our constitution?


News

Context:

  1. While hearing the challenge to the Aadhaar Act on Tuesday, the Supreme Court decided that it must first consider the question of whether the right to privacy is a fundamental right guaranteed by the Constitution.
  2. Two earlier judgements of the court — M P Sharma’s case in 1954 and Kharak Singh’s case in 1962 — had held that privacy was not a fundamental right.
  3. It is essential to determine whether there is a fundamental right to privacy in the Indian Constitution and whether the decisions in M P Sharma’s case and Kharak Singh’s cases were correct expression of constitutional provisions.

Right to privacy is a fundamental right or not?

Arguments in favour

  1. In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy.
  2. There is a battery of judgements saying privacy is a fundamental right.
  3. Right may not necessarily confine itself to one Article in the Constitution or on one amendment.
  4. Privacy is an “inalienable human right” as said in the United Nations Human Rights Declaration.

Against

  1. Founding fathers of the Constitution gave its citizens all kinds of fundamental rights, the right to privacy was “consciously avoided”.
  2. 1962 judgement had struck down all aspects of privacy raised in the case, except to acknowledge that a citizen has privacy inside his home as “our home is our castle”.

 

 

 

[op-ed snap] Courting faith and reason

Context:

  1. Today on B.R. Ambedkar’s 126th birth anniversary, violence over cow slaughter threatens to rend apart the Republic and his magnificent Constitution which gave us a secular country with a fundamental right to life and liberty assured to every citizen
  2. How did the body politic slowly deviate so much so that a man’s choice of meat has become his poison?
  3. It is time to recount Ambedkar’s normalisation of deviance in the Constituent Assembly on the question of cow protection
  4. That deviance emboldened the Supreme Court decades later to take a position that would have been an abomination to men like Ambedkar

Political and pragmatic:

  1. In 1948 Ambedkar published his book The Untouchables: Who Were They and Why They Became Untouchables?
  2. He wrote: “In the first place, we have the fact that the Untouchables or the main communities which compose them eat the dead cow and those who eat the dead cow are tainted with untouchability and no others. The co-relation between untouchability and the use of the dead cow is so great and so close that the thesis that it is the root of untouchability seems to be incontrovertible. In the second place if there is anything that separates the Untouchables from the Hindus, it is beef-eating”
  3. He went on to say: “The reason why Broken Men only became Untouchables was because in addition to being Buddhists they retained their habit of beef-eating which gave additional ground for offence to the Brahmins to carry their new-found love and reverence to the cow to its logical conclusion”

Reference to cow slaughter in Constitution:

  1. However, in the Constituent Assembly debates around the same time, Ambedkar was not as vocal against ‘cow reverers’
  2. In February 1948, the first draft of the Constitution was placed before the Assembly
  3. It contained no reference to cow slaughter
  4. The cow protection brigade within the Assembly pushed for an amendment seeking for cow protection as a fundamental right
  5. Ambedkar and his team of draftsmen came up with a constitutional compromise

Directive Principle:

  1. A directive principle, seemingly based on economic and scientific grounds, was allowed to be introduced by Pandit Thakurdas Bhargava, a prosperous Brahmin lawyer from Hisar
  2. It read: “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle”
  3. Despite his political stance outside the Constituent Assembly, within it Ambedkar said nothing substantial in the debates on cow slaughter, only that he accepted Bhargava’s amendment
  4. Another cow proponent, Seth Govind Das, amplified Ambedkar’s lawyerly thinking in the matter. “I had then stated that just as the practice of untouchability was going to be declared an offence so also we should declare the slaughter of cows to be an offence. But it was said that while untouchability directly affected human beings, the slaughter of cows affected the life of animals only and that as fundamental rights were for human beings, this provision could not be included therein.”

The economic backdoor:

  1. Though expressed in terms of economic policy, underlying this agreed amendment was the Assembly’s covert yielding, in a limited measure, to Hindu sentiments of cow protection
  2. Protection ostensibly was restricted to cows and calves, milch cattle and those cattle capable of pulling heavy loads

Mohammed Hanif Quareshi v the State of Bihar:

  1. A bench of five judges of the Supreme Court in the 1959 case of Mohammed Hanif Quareshi v the State of Bihar strengthened the compromise when it did not uphold a complete ban on slaughter
  2. Bhargava, appearing as an amicus in this matter, submitted that the directive principle of cow protection in Article 48 ought to have primacy over any fundamental right of the petitioners
  3. Turning him down, the court said that “a harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights”
  4. The court finally concluded:

“(i) a total ban on the slaughter of cows of all age and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with the directive principles laid down in Art. 48;

(ii) a total ban on the slaughter of she-buffaloes or breeding bulls or working bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable and valid; and

(iii) a total ban on the slaughter of she-buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of breeding or working as draught animals cannot be supported as reasonable in the interest of the general public”

The year 2005:

  1. This formulation held till 2005 when a seven-judge bench was constituted by Chief Justice R.C. Lahoti with five vegetarian judges on it
  2. The resultant judgment had the Supreme Court — by a 6-1 majority — permitting State governments to impose total bans on cow slaughter
  3. The reasoning was that “Times have changed; so have changed the social and economic needs… there is no escape from the conclusion that the protection conferred by impugned enactment on cow progeny is needed in the interest of Nation’s economy”
  4. Justice A.K. Mathur dissented on the principle of stare decisis — that long-settled positions of law should not be easily reversed — adding, “There is no material change in ground realities warranting reversal of earlier decisions”

Questions for our Republic:

  1. The questions that today haunt our Republic are — would the country not have been safer and better off had Ambedkar stuck to his first draft, which had no reference to cow slaughter at all?
  2. Did he allow a “normalisation of deviance” from the constitutional norm of secularism when he allowed a religious belief to be disguised as an economic principle?
  3. Has the Supreme Court done justice to the original intent of Ambedkar’s magnificent Constitution by reversing itself to keep up with political fashions of the day? A Challenger need not explode for us to realise that deviance into vigilantism can’t always be normalised.

Note4Students:

A general op-ed, can be helpful for Essay Writing. Note the Constitutional directives and the Supreme Court judgments in this regard- they form important part of GS-2 answer.

Andhra Pradesh working on system to DNA-tag convicts

  1. News: The Andhra Pradesh government plans to bring in legislation that will allow the State police and investigating agencies to collect and store DNA samples in a centralised database
  2. Under scanner: The move has come in for close scrutiny, as the Centre first prepared a draft bill on the issue in 2012
  3. But the legislation ran into severe opposition from activists on the ground that it violated privacy. It has since been on hold
  4. Background: In August last year, the AP government launched a DNA collection-kit developed by IntegenX, Inc, a US company
  5. It enables DNA to be extracted from saliva and blood samples within a matter of two hours
  6. Focus on sex crimes: The reasoning is that a centralised DNA database on convicts would help track repeat offenders in sexual assault and rape
  7. Human DNA Profiling Bill, 2015: By the center; was prepared by the Department of Biotechnology and the Hyderabad-based Centre for DNA-Fingerprinting and Diagnostics
  8. But the bill is yet to be cleared by the Union Cabinet
  9. Concern: Several organisations and individuals have raised concerns that the bill gave sweeping powers to government to mine the database and use it for purposes beyond just solving crime
  10. Global experience: So far, about 70 million samples have been collected in 54 countries over 20 years, and there have been no instances of databases being compromised, according to IntegenX company

Note4students:

Note the key terms for prelims like DNA profiling etc. The privacy issue involved and the safeguards needed is the issue for mains here.

Back2basics:

DNA profiling:

  1. Also known as: DNA fingerprinting, DNA testing, or DNA typing
  2. Genesis: The modern process of DNA profiling was developed in 1984 by Sir Alec Jeffreys while working in the Department of Genetics at the University of Leicester
  3. What? It is a forensic technique used to identify individuals by characteristics of their DNA
  4. DNA profile: It is a small set of DNA variations that is very likely to be different in all unrelated individuals, thereby being as unique to individuals as are fingerprints (hence the alternate name for the technique)
  5. Uses: Parentage testing and criminal investigation, to identify a person or to place a person at a crime scene, techniques which are now employed globally in forensic science to facilitate police detective work and help clarify paternity and immigration disputes
  6. Also widely used in the study of animal and floral populations and has revolutionized the fields of zoology, botany, and agriculture
  7. Principle: Although 99.9% of human DNA sequences are the same in every person, enough of the DNA is different that it is possible to distinguish one individual from another, unless they are monozygotic (identical) twins
  8. DNA profiling uses repetitive sequences that are highly variable, called variable number tandem repeats (VNTRs), in particular short tandem repeats (STRs), also known as microsatellites, and minisatellites
  9. VNTR loci are very similar between closely related individuals, but are so variable that unrelated individuals are extremely unlikely to have the same VNTRs

Whatsapp told by HC to delete from its servers info of users who opt out

  1. The Delhi High Court directed instant messaging service Whatsapp to delete from its server all information of users who chose to opt out of its services after September 25
  2. September 25 is the deadline after which Whatsapp said it would be sharing information of users with social media giant Facebook
  3. Background: A petition was filed in the HC saying that Whatsapp’s new policy was an infringement of users’ privacy
  4. Whatsapp was not giving any option to its users but to share the information with Facebook
  5. The bench had expressed concern over what happens to information of users who opt out of Whatsapp services
  6. Regulation? The court has also directed the Union and TRAI to see if they can bring Internet based messaging services like Whatsapp under a regulatory framework

Putin signs controversial Big Brother law

  1. News: Russian President Vladimir Putin has signed a package of controversial anti-terror amendments dubbed ‘Big Brother’ measures by critics
  2. Aim: The law boosts the government’s surveillance powers for the security services, by requiring the telecom operators to store key data and to provide it to security forces
  3. Requires telecom operators to store users’ calls, messages, photographs and videos for 6 months, as well as metadata for up to 3 years
  4. Impact: May cost internet companies billions
  5. Response: Snowden called the decision a ‘dark day for Russia’

Right to privacy concerns: Aadhaar holder can block his biometric info

First time, UIDAI has disclosed that a mechanism exists under which a card holder can choose to block the biometric information linked to his Aadhaar card.

  1. An Aadhaar card holder can block his card along with his demographic and biometric information if he wants to opt out of the UID system.
  2. Government tried to convince the Supreme Court that Aadhaar is “purely voluntary”.
  3. If a person wants to block the information about him contained in the biometric database, he can do it voluntarily and nobody will be able to unblock it, till he wants.

Absolute privacy is a futile notion, says A-G

The A-G argued that right to privacy of an Indian citizen has become a futile notion in an era when Facebook can track every detail, thought and movement through its WhatsApp software application.

  1. The govt. is going at great lengths to convince that Aadhaar is a voluntary authentication device.
  2. It is not a snooping device or meant to be an instrument of control of the likes used by authoritarian States to keep tabs on citizens.
  3. He said the Aadhaar was the most widely held identity card in the country at 92 crore compared to 7 crore PAN card, 5 crore having passports and 12-15 crore people with ration cards.

SC to re-look right to privacy, courtesy Aadhaar

New bench will hear the fundamental issue whether the state is in the right by creating a situation by which a citizen is enticed to voluntarily part with his privacy rights, for social benefit schemes

  1. The new Constitution Bench will sit for the first time on October 14.
  2. Over 60 years after an eight-judge Bench declared that Right to Privacy is not a fundamental right.
  3. Previous order by the Supreme Court on August 11, restricting the use of Aadhaar to PDS and LPG schemes.
  4. The Supreme Court decided to set up another Constitution Bench to re-look the question in that, Aadhaar card scheme is an invasion into citizen’s privacy.
  5. In 1954, the SC Bench by Chief Justice M.C. Mahajan held that Right to Privacy is not recognised by the Constitution makers as a fundamental right, and so no need to strain to make it one.

A basic right is in danger

  1. The Attorney General’s argument questioning right to privacy is against the interests of the people, and also seems to be politically motivated.
  2. India has ratified the International Covenant on Civil and Political Rights, which unequivocally supports the existence of the right to privacy.
  3. It is inconsistent for the govt. to argue that US has violated Indian citizen’s right to privacy and denying the same right domestically.

India’s DNA profiling bill may become one of the world’s most intrusive laws

Among all the forensic tools available to criminal investigators, DNA analysis is the only one that has consistently produced reliable results.


 

  1. Now Narendra Modi, India’s prime minister, wants to ensure that the technique be used more widely to convict criminals in the country.
  2. Is it going to be one of the most intrusive bills to be put in motion?

 

The bill proposes creation of a national DNA data bank, without requisite safeguards for privacy, and opens the information to everything from civic disputes to compilation of statistics.


 

Some pertinent questions – 

  1. Is DNA evidence infallible?
  2. Can the DNA profiling board protect our genetic information? do we have adequate safeguards against cyber attacks?

DNA profiling Bill triggers debate

DNA Bill could result in large scale violation of human rights.


 

  1. DNA profiling is a forensic technique used to identify individuals by characteristics of their DNA.
  2. One sample of a person’s DNA is maintained by forensic authorities.
  3. That sample can be matched to DNA obtained from a crime scene to establish whether that person was present or not.
  4. “Does the Bill mean to say that once a criminal always a criminal?” asked Thushar Nirmal Sarathy, an advocate and human rights activist from Trivandrum, Kerala.

Where’s right to privacy? You decide, Govt tells SC

Attorney General Mukul Rohatgi asked the court to constitute a nine-judge bench to decide what he said is a disputed question of law and constitutional provisions.


 

 

 

  1. Is right to privacy a fundamental right? The NDA government raised this question in the Supreme Court Wednesday, and went on to state that the Constitution does not assign right to privacy that status.
  2. What’s going on here?
  3. NDA is defending the validity of the Aadhaar card since a batch of petitions have contended that collection and sharing of biometric information was a breach of their “fundamental” right to privacy.
  4. It must first be settled authoritatively whether privacy is a fundamental right.

Privacy not a right, Aadhaar legit: Centre

Quoting a SC judgement of 1962 in Kharak Singh case, Centre replied that the right to privacy was a ‘vague concept’ and not a ‘guaranteed right’ under the Constitution.


 

However, the petitioner pointed to several decisions of the SC subsequent to the Kharak Singh case, including the Maneka Gandhi case, in which the court gave a very wide ambit to the right of personal liberty.

Privacy is at the core of our vital needs. Privacy leads to fulfilment of our goals, enrichment of ourselves and our growth. The need for privacy distinguishes humans from other animals. It is a fundamental right,” Mr. Divan said even as Justice Chelameswar suggested that since there was a “divergence of opinion” the matter may be referred to a larger bench.



:( We are working on most probable questions. Do check back this section.







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