Source : Congress leader P Chidambaram on Thursday hailed the Supreme Court verdict making privacy a fundamental right. He read out a statement at a televised press briefing: “Privacy is a fundamental right. The freedom that was won in 1947 has been enriched and enlarged. Privacy is the core of personal liberty. Article 21 has acquired a new magnificence.”
His opening sentence, “Privacy is a fundamental right”, suggests he always believed it to be so. What he perhaps forgot to mention, even as an aside, was how, then, he and his UPA-II government failed to legislate it despite announcing two draft bills on privacy. The UPA-II government did not fulfill its initiative to bring in a legislation making privacy a fundamental right. It was when he was the home minister of the country – between 2008 and 2012 – that the government brought in a draft privacy bill. That was in 2011. There were complications with the first draft. So, the home ministry called a meeting the same year and a second draft was made.
That was the last anyone heard of the bill. Chidambaram was replaced by Sushil Shinde as home minister, but the silence continued till 2014.
The Modi government came to power in 2014 and the matter was revived. On April 29, 2016, Communications and IT minister Ravi Shankar Prasad told the Rajya Sabha when asked about the proposed legislation on privacy: “The government has initiated the process of drafting the legislation to protect the privacy of individuals breached through unlawful means in consultation with various stakeholders.” He did not talk of making privacy a fundamental right per se. He only talked of privacy protection measures. We do not know if it was a dilution of the UPA-II’s draft bill or an entirely new bill not about privacy but about data protection measures.
It was reported in the media at that time that the NDA government was more interested in amending the IT Act, 2000 to take care of data protection issues and that the right to privacy bill – which eventually went through myriad revisions -- was flitting between the Department of Personnel and Training and the Department of Electronics and Information Technology (DeitY).
In any case, the NDA government made its stand clear – thus sounding a death knell to the 2011 draft bill– on privacy in the Supreme Court. In August 2015, a three-judge bench of the supreme court – comprising Justices Bobde, Chelameswar, and Nagappan – was hearing arguments in a case challenging Aadhaar on the grounds of the right to privacy. The petitioners’ lawyer Gopal Subramaniam argued there was such a right in the Constitution. Countering, then Attorney General Mukul Rohatgi told the court: that “The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not guaranteed under the constitution because privacy is not a fundamental right.”
Justice Bobde reacted to that statement, saying that privacy is “a part of liberty”. He said: “Privacy telescopes to liberty and the breach of privacy leads to a violation of liberty which is protected under Article 21 of the Constitution.”
Both the UPA and NDA governments seem to have shied away from taking the parliamentary route to making privacy a fundamental right. They will need to answer at least now as to why they waited for the judiciary to settle the issue by declaring privacy a fundamental right. That, in the process of delaying action on the privacy bill the government had to subject itself to human rights scrutiny.
In May 2017, the government of India submitted a national report at the Universal Periodic Review of human rights of the Human Rights Council. Under the sub-heading, “Fundamental freedoms and participation in public and political life”, the report dealt with “Right to privacy and surveillance”.
Two points were made. The first was about privacy protection measures: “Government of India has decided to set up the Centralized Monitoring System to automate the process of Lawful Interception & Monitoring of telecommunications. It is likely to be completely operationalized in 2017.”
The second point, interestingly, was about privacy as a right: “India believes that its surveillance programme furthers its national security interests and that safeguards in the law, including safe transmission of content, requirement for authorization from senior officials, and the existence of a Review Committee to oversee such authorizations, are sufficient to address concerns regarding privacy and freedom of speech. However, in recognition of the potential of such a system to impinge on the freedom of speech, the Government is in the process of legislating on right to privacy.”
This was in May 2017. Did the government follow up on the legislation process thereafter? No idea. It would be two months later, in July, that the Supreme Court would set up a nine-judge bench to examine whether privacy is a fundamental right under the Constitution. Now that the verdict is out, we will never hear of the “process of legislating on right to privacy”.