The “Free Riders” and Privacy as a Fundamental Right in India

                                                                                By Aparna George, Local Coordinator (2017-18), SASFL

Euphoria, a feeling of liberty, a sort of unfettering…

These disjointed words aptly sum up my feelings when in August 2017, a nine-judge Supreme Court bench pronounced their verdict on the right to privacy as a fundamental right. With legal sanction and appropriate sanctity, my privacy is now as inalienable as my right to life and liberty. It is as fundamental as my right to be treated equally, and as invaluable as my right to express myself in any which way I choose. High time, I must say?

But once the initial glitter faded, the reality was a lot more unambiguous. Is this judgment actually a double ended sword? Is there more to it than what meets the eye? As a Law student, questioning comes to me as second nature and that’s what I proceeded to do. The end result didn’t paint a rosy picture.

Privacy as a fundamental right is one that very few countries in the world promise, including the oldest democracy in the world – The United States of America. Logically, this is due to the subtleties and complexities involved in the concept of privacy, and its relation to how people in a particular culture perceive it.

The privacy of an individual starts from the basics. My name, age, gender, orientation, family matters, occupation, vocation, skill set etc are all private information that I may or may not choose to share. Now, this privacy also extends to my past, criminal or otherwise; my right to raise a child or abort it no matter what the circumstance; my right to eat the meat I enjoy; and my right to use my body the way I please.

My right to access radical material and videos online, my right to freely engage in anti-social activities that may not always amount to “crime” (because I have the right to be left alone), my right to withhold personal information that the State requires – is all STILL my own, and therefore under the purview of my right to privacy. Or at least, that’s how I think it should be. However, a serious problem arises when the state or government try to decide or are given the power to set the boundaries of what is private for an individual, and what is not.


We live in trying times today with the whole world thrown into a chaos. Countries are shutting their borders, breeding distrust between neighbors and friends; and globalization feels like it has become a sham. The root cause of this distress and alarm across the world is national security.

With the ISIS fast losing ground in Iraq and Syria, they have adopted other means to spread their propaganda. Exhibiting excellent marketing skills, they have now created material online which can be accessed by anyone prompting individuals to take law into their own hands and show their solidarity with the cause. So your average Jack or John is seated two chairs away from you fully focussed on his screen but you have no idea that he isn’t reading fan fiction.

The biggest obstacle to such lone wolf attackers is that these are your normal, otherwise rational thinking people with no past records, who are getting brainwashed seated at home. The only way to prevent the attacks that we now see in Barcelona and Paris is to keep a check on the material that appears online. But with privacy termed as a fundamental right, I can now ask for any material to be brought back to the public domain (like the Internet) because what I read or watch or listen to is my private business. Therefore, when defining privacy, governments or states tend to keep this scenario in mind where individuals could be engaging in activities which (either via the law or by their definition of privacy) is against the national security of the country.

Furthermore, this entire debate about privacy had erupted after people felt they were being forced to part with their personal information to the State. Do you know that the United States of America has the most efficient social security system put in place by President Harry Truman that with a click a person can get any information about everyone else in the country?

The reason why such a system was developed and is deemed necessary is that it helps distribute benefits like pension and subsidies even if a person changes addresses or names. It helps act as data for the Congress (the legislature meet in the United States), which needs real data on crime rates or health concerns while organizing legislation. It is thus, important that the makers of the law keep social security in mind when crafting the definition of complex concepts like privacy for the purpose of a legislation.

Though we shouted in unison immediately after hearing the phrase ‘privacy is a fundamental right’, we failed to give ear to the riders that come with it – national security, legality, and proportionality. The bigger debate on whether Aadhar, the government’s unique identification system, is indeed a qualified restriction which still remains unanswered.

When the court says that people have reproductive freedom,  it also says that this freedom is to be exercised within the ambit of the 2016 amendment to the Medical Termination of Pregnancy Act (1971),  which clearly lays down the limitation period and the circumstances under which an abortion can be allowed. Similarly, compelling State interest is an allowance that the Supreme Court has made for privacy being a fundamental right. Now, what amounts such interest is another definition that the court needs to think through – and that is dangerous territory, involving the risk of being far too broad or way to constricted.

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