National security cannot become the jump seat under which you can perpetrate any kind of illegality: Manish Tewari
The Supreme Court’s historic judgement that the right to privacy is fundamental right has been lauded by all. Even the ruling BJP, which opposed the petitioners in court through lawyers representing its governments at the Centre and States, now claims that the judgment is in accordance with the government’s views.
Manish Tewari, Former Union minister and Congress leader, said the environment in the country over the past three years convinced the nine judges that it was necessary to define the extent to which state can intrude in the lives of citizens. Speaking to Anju Grover for Indian Currents, Tewari said that the monumental judgement has brought a major relief in view of the fact that snooping had become rampant under the Modi government.
IC: The Supreme Court has ruled that privacy is a fundamental right that requires constitutional protection. What about snooping and also what will be the impact of verdict on Aadhaar scheme is the concern of many.
Manish Tewari: Unauthorised and illegal snooping is completely off the charts. Electronic surveillance of telephones or physical surveillance of people falls under the illegal activity. It is another matter that snooping is rampant under this government which is actually illegal. The issue of privacy emanated out of petition on Aadhaar which is pending before the Supreme Court. In the light of nine-judge bench judgement, the court will have to decide on whether Aadhaar needs to be made compulsory for all public services; whether it is mandatory for citizens to share their data or get Aadhaar cards made. While I do not surrender my personal biometric details or do not get into Aadhaar prison and I can still continue availing public services. These are all questions which the Court will have to decide.
IC: BJP president Amit Shah maintained that the SC judgement is in accordance with the Government's vision and actions, some mischievous propaganda needs to be busted. Do you endorse his views?
Well the vision was not certainly articulated in the court of law. In the Court, the government law officers said that there is no fundamental right to privacy and even went on to say that every individual does not have a complete right over his body.
IC: Former Attorney General Mukul Rohatgi told an English TV channel that he had argued before the top court against treating privacy as a fundamental right. Rohatgi, who had represented the government in the top court till June this year, said the government had argued before the top court that privacy "is not a fundamental right but a regular common law right". After all, the Union government in the course of the hearings on the validity of its Aadhaar-based unique identity scheme kept stating that privacy is not a fundamental right. Now it is welcoming it…
They have perfected chicanery and lying into a fine art.
IC: What will be the implications of the judgement on state policy and citizens’ rights?
In 16th century, English court had said that home is a man’s fort and therefore he is entitled to do whatever is lawful within the confines of his home without anybody interfering. I am not saying that the judges were influenced by the external environment but if you roll back into time, Keshav Bharti in 1973 had delineated the basic structure of Indian Constitution. That would not have happened if there was not a context in a certain environment. Similarly, the unanimous judgement of nine judges in the right to privacy case, would have never come about, if over the past three years there would not have been an environment in the country that the government and its vigilante surrogates will tell you what to eat and what to drink, what to wear and what to say. I guess there was an environment in this country whereby it had become necessary to define how much state can intrude into the lives of citizens.
IC: Privacy as a value finds itself at loggerheads with notions of national security, the needs of a knowledge society and even socio-economic policy. Do you think that this judgment will set many such concerns at rest and bring about a more equitable relationship between citizen and state?
The Supreme Court overruled two past judgements – the MP Sharma judgement of 1954 and the Kharak Singh judgement of 1962, where the court had ruled that privacy was not a fundamental right. So the national security cannot become the jump seat under which you can perpetrate any kind of illegality. Whatever intrusion has to take place into the lives of citizens must be in accordance with law. Article 21 is clear on it.
IC: While the Court stops short of overruling an earlier Supreme Court verdict upholding section 377, it does make a strong case that a person’s sexual orientation falls integrally within the right to privacy. Your views.
The Court disagreed with the conclusion with the Naaz foundation judgement. They haven’t struck it down.
IC: What is there for women in the SC verdict on privacy?
The abortion rights and women rights over their bodies are concepts which for the first time, have been fleshed out in black and white. Therefore, the judgement specifically, insulates or provides for the fact that there are certain activities which are unique to women and the ability to be able to carry out those activities in the privacy of their homes, something which needs to be protected.
IC: People share lot of information on social networking sites, exposing themselves to undue attention from unexpected quarters. Digitisation has actually led to enormous quantity of personal data being transferred to public and private bodies. A collateral benefit of the Supreme Court verdict is that a comprehensive legislation on data protection becomes imperative. Your views.
Justice Sanjay Kishan Kaul wrote a separate but concurring judgement on the right to be left alone. Therefore, at some point in time, rules of engagement emerge in the cyber space, you possibly will have the ability to be able to ask all the internet companies to erase you. Therefore, you would have the ability not to exist as a cyber entity.
IC: What is the solution to this problem? Is comprehensive legislation on data protection an answer?
Of course, that goes without saying.
(Published on 04th September 2017, Volume XXIX, Issue 36)