Thursday, 3 August 2017

Right to privacy: 10 member panel set up to look into data protection, Modi government tells Supreme Court

Right to privacy: 10 member panel set up to look into data protection, Modi government tells Supreme Court

The Central government on Tuesday told the Supreme Court that it has set up a 10-member committee to look into the data protection framework in the country. The panel, headed by former SC judge BN Srikrishna and also comprising UIDAI CEO Ajay Bhushan Pandey and Vidhi Legal founder and research director Arghya Sengupta as its members, will identify key data protection issues, evolve principles on it, recommend methods of addressing them and will also suggest draft data protection Bill.

The panel was set up to ensure growth of the digital economy as the government felt keeping personal data of citizens secure and protected is of utmost importance, additional solicitor general Tushar Mehta told a nine-judge constitution bench headed by Chief Justice JS Khehar.Mehta, who was appearing for UIDAI, said the government has notified setting up the panel a day ago. The ASG, appearing for UIDAI, maintained that right to privacy can’t be given the status of a fundamental right and elevating it will have dangerous repercussions.He said the right to privacy, though an inherent right, is only a common law right and whenever the legislature had found it necessary and desirable to protect a person’s privacy, it has done so by enacting a statute and thus, making a statutory right of privacy. He contended that legislature was in a better position to protect some forms of privacy through statutory enactments, which can be tested on the judicial principles.But the bench told him that there was a vast difference between interpretation of a statute and the Constitution and that it was for a constitutional court and not for the Parliament to interpret the latter.

“Fundamental rights need to be interpreted according to changing needs of the times. The Constitution cannot be interpreted like a statute. Words are not important (in interpretation of the Constitution), the principles are…and that task is with us, the court…not Parliament,” said justice Rohinton F Nariman. While agreeing with the bench, Mehta insisted that privacy was an important and enforceable right, but not a fundamental right. He further added that the “courts have always refrained from creating a new right adopting the process of interpretation since creating a ‘right’ is not the prerogative of the courts, but that of the competent legislature. Even in other jurisdiction, the courts have refrained from ‘creating’ a right by way of judicial law making”.

The ASG further said amenities like food and toilets are more important than privacy in India. Senior counsel Aryama Sundaram, arguing for Maharashtra, reiterated that only Parliament was empowered to include right to privacy as a fundamental right and it was not the job of the Supreme Court. The issue arose when Justice Nariman said UN Declaration of Human Rights 1948 to which India was a signatory had expressly recognised privacy as an inalienable right and this constitutional bench just had to read it in. Sundaram told the Bench there was no room for interpretation but only a constitutional amendment can do so. He said Constituent Assembly had discussed the right to privacy and had come to a conclusion that it is part of Article 19 and 21. “Privacy largely is my right not to be intruded into my person, my private space, these are right to liberty. All these are already protected.

Right to privacy needs to be governed and protected statutorily and it cannot be a fundamental right,” the senior lawyer added. Senior lawyer Rakesh Dwivedi, appearing for BJP-ruled Gujarat, also opposed treating privacy as a fundamental right. He pointed out that technology should have a life enhancing effect. His stand was supported by Justice Chandrachud, who observed: “Privacy must not stifle innovation in information technology…it should not take away the benefits of knowledge economy…privacy must develop in a socio-cultural context.”

Further hearing on the issue will resume on Wednesday.

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