On the 24th of August, 2017, India won its second battle of independence. She woke up to a new life, and this time with wider freedom. The shackles of the twelve digits were broken and unfettered the 125 cr. Indians. A nine-judge bench of the Supreme Court delivered its verdict in Justice K.S. Puttaswamy v. Union of India, unanimously affirming that the right to privacy is a fundamental right under the Indian Constitution. The Supreme Court in the truest sense resurrected the “heart and soul” of the constitution after 68 years of its adoption.

 

An English Common Law maxim asserts, "Every man's house is his castle” and as held in Semayne case, “the house of everyone is to him as his castle and fortress as well as for his defense against injury and violence as for his repose.” But the invasion by the ‘Big Brother' laws into the sacred purlieus of one’s life threatens the upholding the validity of the above.

 

The new Magna Carta of privacy triggers the debate on Aadhar, abortion, social media, private companies using Aadhar details, and the verdict with regard to the unconstitutionality of section 377 susceptible to challenge. This landmark judgment raises questions, such as how private party can use our rights? Can your chat history be saved? Can a person’s browsing history be shared? The 21st century is an age of rights, human rights which are accepted universally, and if a government that cannot protect its citizens’ right to privacy cannot credibly maintain a democratic regime of equal treatment under the law and the entire edifice of democracy collapses since the principle of human dignity is the raison’ de etre of the state.

 

As elucidated by Justice Rohinton Nariman F. Nariman: “Laws should reflect the ‘needs of the times’ and protect the citizens from violations by the State and non-State players.” Just as Keshawanada Bharti would have never happened in 1973 if it had not been for the prevailing environment, the right to privacy would not have happened had it not been for the prevailing environment. All of us live in a certain ecosystem that impacts us. Over the last thirty-eight months, we have had an intrusion in people’s private spaces, all kind of vigilantism, army is telling you what to eat, what to wear, how to conduct yourself, anti-Romeo squad roaming around, people getting lynched for eating beef; it is all tantamount to moral policing, which is trampling into the privacy of individuals.

 

II. The Government’s Side: Privacy Can’t Be Absolute

 

Since the first day of the saga, the government has consistently reiterated its belief that the right to privacy is not a fundamental right, but a legal right. Privacy cannot be absolute for an individual, as the intervention by the State he/she is living in is inevitable. India doesn’t facilitate a self-dependent machinery and empowers its citizen to be at the liberty to do anything they want. There are a number of issues have been raised as matters of grave concern. They are listed as below:

 

2.1 National Security

 

One of the biggest concerns that the current administration has about privacy is its passive potency to be a threat to the national security of the country. As we have seen in the Rohingya conflict, the security of the country comes first. Without specific surveillance and reasonable restrictions, malfeasants amongst the population have a free pass to function the pernicious and dangerous ways they wish to. The right to privacy, therefore, becomes a menace for the State machinery in ensuring the safety of its citizens. The Home Ministry has demanded the Centre and urged the people to concede to their privacy right, in lieu of assisting intelligence agencies. In 2015, the Ministry issued a statement requesting the government to keep the functioning of such institutions outside the purview of the IT (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules framed in 2011 by “exempting intelligence agencies, so they can obtain data under false pretext, an activity the bill proposes to prohibit and penalize.” In some regards, the Government is right in claiming reasonable autonomy in monitoring and surveilling the actions of its citizens, who also owe a constitutional duty to protect the vested interests of the nation at large. Thus, compromising security and risking lives of millions of innocent people seems an amateur and rash decision.

 

 

2.2 Welfare of the poor and Socio-Economic Equality

 

Another point of debate that was raised by the State was its concern of ensuring equilibrium in distributional policies if the poor don’t waiver off some of their rights. Millions who suffer from the miasma of poverty will be rendered helpless and hopeless, if say, a provision like Aadhaar was proved unconstitutional. With the introduction of this unique 12-digit number, India could finally realize the lost dream that was the ease of administration. Its efficacious powers of delivering Centre subsidized amenities to the marginalized and ameliorating the burden of paperwork on officials makes it a necessity in our society. While it does have legal implications, Aadhaar has been welcomed by people and advocated by the Government, who say it is “a tool to provide social welfare measures to the millions of poor in the country without any leakages." It also adds to the war to tackle and successfully overcome the age-old problem of overpopulation.

 

2.3 Absence of Exactitude and The Presence of Subjectivity

 

One of the biggest arguments against privacy is the fact that it has no fixed connotations of which people interpret. The definition of privacy varies from person to person. For some, getting seen by other people is a violation of their privacy, while for some, even getting seen naked by other people isn’t a problem. Our laws should be sculpted in a form that allows both the group of people being protected and treated in a dignified manner by the right-thinking people of the society. CA Sundaram, a senior advocate in the Maharashtra government presented the same in front of the learned Supreme Court. He is practical in assuming that “if made a fundamental right, it would open a flood of litigation.” Due to the egregious dearth of judges in the country’s courts, such trivial matters may eat up the valuable time that some other more important cases might get. While no one can zero in on an exact definition and limitation of one’s right to privacy, making laws for the same also becomes a challenge for policymakers to overcome. Exactitude, therefore, becomes a problem with the same.