Right to Privacy vs Legitimate Interest of State

Context:

● Recently, the central government told the Delhi High Court that though the right to privacy has been held to be a “sacred fundamental right” and is being “respected” by the government, the “veil of privacy” can be lifted for certain “legitimate state interests”.

● The government said lawful interception, monitoring or decryption of any messages or information stored in any computer resources is done by authorised agencies after due approval in each case by the competent authority.

● The government was responding to a petition seeking permanent halting of the Centre’s surveillance projects — Centralized Monitoring System (CMS), Network Traffic Analysis (NETRA) and National Intelligence Grid (NATGRID). The petitioners have contended that these enable government authorities to intercept, store, analyse and retain telephone and internet communications data in bulk in violation of the fundamental right to privacy.

● The government said that the country faces grave threats from terrorism, radicalization, cross-border terrorism, cybercrime, organized crime, drug cartels which cannot be understated or ignored. A strong and robust mechanism for timely and speedy collection of actionable intelligenceincluding digital intelligence, is imperative to counter threats to the national security. This is undeniably legitimate State interest.

Probable Question

● The right to privacy is a fundamental right. However, the “veil of privacy” can be lifted for certain “legitimate state interest” by due process of law. Critically examine.

About Right to privacy:

● The Supreme Court in Puttaswamy judgment (2017) declared the right to privacy a fundamental right. Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III.

● According to the SC verdict, privacy is the constitutional core of human dignity. It has both normative and descriptive functions. At a normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.

● Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right.

Condition for law/state to encroach upon privacy:

● According to SC, a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.

● In the context of Article 21, an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable.

● The law must also be valid with reference to the encroachment on life and personal liberty under Article 21.

● An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; should not suffer from arbitrariness and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.

● According to the judgement, the legitimate aims of the state should be “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.”

Conclusion:

The draft legislation on data protection was submitted by a committee of experts chaired by Justice B.N.Srikrishna is an important step towards a robust regime for data protection. It tried to maintain a careful and sensitive balance between individual interests and legitimate concerns of the state.