Privacy is not an Absolute Right.. Security is existential right

While criticizing the PDPA Bill, experts need to remember that despite what they may think, Privacy is not an absolute Right. The Privacy judgment of 24th August 2017 stated that

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

This also meant that the limitations of “Reasonable Exceptions” applied to the Right to Privacy also. The “Reasonable Restrictions” are …interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

It is important to note that our Constitution however much we would like to respect, has many internal contradictions brought about by the number of amendments that were made as a part of political expediency. The Supreme Court at various points of time have not stopped this corruption of the constitution. Nothing is more relevant than the experience of Emergency in India in 1975 and the retrospective amendment of electoral laws that Mrs Indira Gandhi made to which the Supreme Court was a mute spectator.

Supreme Court on various occasions has itself ignored provisions of the Constitution and some times even imputed words not present in the Constitution. In otherwords, the Supreme Court has always been above the constitution since it has the power to interpret the constitution.

Hence even the PDPA in whatever form it comes out is within the powers of the Supreme Court to re-write or re-interpret. Hence we need not be too much concerned that the Government will usher in an “Orwellian State” etc., since the oversight of the Court is always available for any significant misuse of the law.

We need to therefore focus more on whether the law is reasonably worded to indicate the intentions that are within the powers of an executive Government.

Afterall a time has come to all of us to say whether we want the rule by the Parliament and whether the elected representatives have any role in the Governance of the country. It is another argument to say that politicians are corrupt etc. The same argument also applies to Judges who also can be corrupted. It is important for us to recognize that there is a Government in the country and it has some duties. This duty includes the duty to protect its citizens from harm of different kinds.

Right now there is an example before us in the form of restrictions different Government agencies are imposing on citizens in the fear of the COVID-19 virus. Have we not accepted the restrictions for greater good ignoring the human rights? Hopefully some of the restrictions are temporary but as we have seen in many other security initiatives including the frisking in Airports, some security measures tend to become permanent.

The reason why the citizens accept such restrictions is because existentialism overtakes all the other rights including freedom of speech or Privacy.

We the Citizens of India are concerned that our existentialism is now under threat because of crimes around us, the Terrorism, the enemy powers, internal political divisions etc. We want any government of substance to be capable of protecting us from these threats.

It is not possible for us to provide primacy to Privacy ignoring the existential threat to our life for which the Government is the custodian.

Hence any law even the one which has to be drafted under the provisions of a constitutional fundamental right or under the mandated of the Supreme Court cannot overlook the duty of the Government to protect its citizens.

Security is as much a fundamental right as Privacy. Even if any constitutional expert wants to argue that our constitution has not specifically mentioned that “Security is a Fundamental Right”, we need to imply this intention since all “Fundamental Rights” are subject to “Reasonable Restrictions” which are essentially to protect the citizens.

Hence no argument to restrict the powers of the Government to do its duty can be sustained.

Yes… there has to be a law… it has to have the specific provisions through which some rights can be restricted… there has to be a due process for such restriction…etc.

But it is not acceptable to consider that there should be no such laws that protect the citizens because some Privacy activist feels that the right of a criminal to hide will be adversely affected from the law.

Most of the arguments against Section 35 of the PDPA is based on the “Reasonableness” of the provisions.

The law itself is within the Article 19(2) restrictions and hence there can be no objections. At present there are no rules which indicate that the restrictions will be applied arbitrarily. Hence the objections raised are like the objections raised for the CAA stating that when NRC is implemented there could be some issues for some persons who are today enjoying some privileges because the law was lax so far.

This CAA mentality of the Privacy Activists should be shed completely. We want Privacy but it does not mean that Security can be subordinated to privacy. There has to be a balance and when in doubt Security should prevail since it is an existential requirement. We can live without Privacy but not without security. Right to dignity in life is only after we have a right to life.

This distinction needs to be understood by the critics and even by the Court when it is referred to them.

We therefore need to consider that the objections to Section 35 of PDPA 2019 are motivated by extraneous considerations and need to be rejected resoundingly.

Naavi