Right to Privacy: Lawyers expect spurt in privacy-related litigation

Legal experts expect a spurt in privacy-related litigation following the Supreme Court (SC) verdict. “Every government action could now be challenged in a court, if it is seen as violating a person’s privacy,” says cyber law expert and SC advocate Pavan Duggal.

For instance, if a person gets a call on his/her mobile or a WhatsApp message from a state-owned entity, which is seen as violative of a person’s privacy, the government arm and the state could both be taken to court. “This could not have been done earlier, as the fundamental right to privacy had not been guaranteed under the Constitution,” says Duggal.

Most legal experts expect more Aadhaar-related litigation to come up before the courts. “For instance, one could challenge the Aadhaar data collected from 2009 till the time the Aadhaar Act came into force in 2016, on grounds of violation of privacy,” noted another SC lawyer.

According to senior advocate Indira Jaising, the decision will have a marked impact on the future of Aadhaar, especially when considering the focus on informational privacy within the judgment. “However, its exact impact has been left up to the three-judge Bench that will determine the facets of the Aadhaar scheme,” she added.

Jaising was of the view that the verdict also casts a shadow on the legitimacy of Section 377 of Indian Penal Code (involving unnatural offences). “We can now safely say that such prosecutions constitute a violation of privacy,” said Jaising.

Senior advocate Kamini Jaiswal agrees that the judgment will monumentally change the way the state and its citizens look at the role of privacy in day-to-day life. “The Aadhaar issue, in particular, will be intrinsically affected,” she adds.

The judgment harps on the need for informational privacy, recognising its importance in today’s era of digitisation. “Drawing the line on balancing the right to information and the right to privacy will be tricky, and could take some time. The decision is nonetheless a huge step towards promoting governmental transparency,” says Jaiswal. 

While commending the government’s attempts at implementing a robust data privacy law, the court has highlighted several guiding principles, including those proposed by an expert group of the erstwhile Planning Commission. These principles include providing notice, allowing choice and consent, limiting collection of data to a specific purpose, access to individuals for corrections, prevention of unnecessary disclosures, and maintenance of security openness and accountability. Jaising says these guidelines have thrown the data protection ball squarely in the government’s court.

Lawyers point out that the judgment has not gone into the specific entitlements and interests that comprise the fundamental rights to privacy, which have to be weighed on a case-to-case basis.