Supreme Court To Examine Key Question About Privacy In Upcoming Case

By K Raveendran

With the Supreme Court repeatedly upholding privacy as a fundamental right, it has become a serious challenge for lawmakers, law enforcers and even the courts to deal with enforcement of rules and regulations that often encroach upon this right of the citizens. The task has been further complicated by recent court observations, particularly by subordinate judiciary, that the right to privacy may be subject to reasonable restrictions if it is in public interest.

The issue that props up is not so much the irreconcilability of public and private interest, but what may be considered reasonable restrictions. There have already been outcries about personal phones being tapped by the authorities citing security reasons, which at many times appeared to be more arbitrary rather than warranted. Here again, vagueness about security adds another layer of uncertainty, confusion and the scope for misuse, especially when the government of the day is not a great fan of democratic principles and institutions.

When targeting critics and those who hold opposing views has become part of ‘standard operating practice’, as is the case today, taking liberty with the definition of any of these terms is fraught with serious danger. In the prevailing situation, slapping a criminal charge against anyone can be accomplished by batting an eyelid. The charge may not stand scrutiny in a court of law, but that happens after due process. But for the person who has been charged, it could mean a life of hell, with privacy being the first casualty as the authorities examine phones and other communication devices and create big noise around the ‘discoveries’.

In this context, an interesting case recently came up before the Supreme Court, in which a man accused of adultery, and found so by a family court, moved a petition challenging a Delhi High Court order to the effect that demanding details of hotel room bookings and call detail records for proving a case of adultery did not amount to a violation of the right to privacy. The man argued that calling of such details amounted to violating his privacy as guaranteed by the Constitution. The case has been posted for August 7 for the next hearing.

The woman had approached the family court seeking remedies on the ground that her husband had stayed at a hotel with another lady and her daughter and wanted the court to call for the hotel records as well as his call details to prove adultery. But this was objected to by the man on the ground that such action would not only infringe his own privacy, but also cast aspersions on the character of the woman who he claimed to have met only the hotel.

The man’s argument about the high court having erred in interpreting the Supreme Court judgment decriminalising adultery may be relevant only to this particular case, but the apex court will have to consider whether calling for call records and details of one’s stay is violative of the fundamental right of privacy, guaranteed by the Constitution, even if it is meant to prove or reject the charge of adultery. That is something that will be keenly awaited, especially in the context of government moves to justify any kind of violation as legitimate if it affects ‘security’.

It will also be important in the context of the draft of the proposed Digital India Act that is meant to deal with all kinds of data, including sensitive and personal data of people.  And with the rise of sectors such fintech, health-tech, eCommerce and artificial intelligence, companies will have access to such large data and there is a great need for regulation.

The Digital India Act is expected to harmonise laws, regulate emerging technologies such as AI and incorporate industry input on blockchain and Web 3.0 regulations to protect digital citizens.  The law will also deal with problems such as cybercrimes and abuse of social media, which are rising at an alarming rate. And more importantly, a large number of cases are reported in the financial services and the health care sectors.

The law builds on the Digital Public Infrastructure (DPI), such as Aadhaar, CoWIN, and Unified Payments Interface (UPI), which has been the key to unlocking innovation and solving the accessibility challenge for many Indian citizens and companies. The law will also deal with security threats such as ransomware, data breaches, phishing attacks, denial-of-service attacks threaten both ordinary people as well as businesses and governments. (IPA Service)

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