Sometime in March 2015, the Ministry of Home Affairs received the draft of ‘Right to Privacy Bill’. Although the legislation was hanging in balance, North Block was against the straightforward expression of the issue. The ministry feared that “with such an explicit articulation, the new law would bring the right to privacy within the domain of Supreme Court by way of writs”.
This was the time when the Aadhaar row had reached the Supreme Court but petitions were merely confined to social security schemes that were filed in 2013 and another issue of transferring biometric data to any other agency without the individual's consent in writing, filed in 2014. Now, if we look at the government’s draft bill, the object clause of the bill clearly states, “The right to privacy is part of the right of a person under article of the Constitution.”
If this was translated into law way back in 2015, this current debate would not be taking place. But it was delayed because of internal differences over whether right to privacy is part of the right of a person. MHA’s comment on the bill was very cryptic. “Impact of this clause on governance, especially on the functioning of intelligence and security agencies, needs to be assessed.”
This makes it amply clear that various arms of the government were not in favour of making right to privacy fundamental right of an individual. And, this is not just about the NDA government. When the Constituent Assembly was gathered to discuss the fundamental right under the Constitution, the issue was left untouched. Jawaharlal Nehru was of the opinion that a fundamental right should be looked upon, not from the point of view of any particular difficulty of the moment, but as something that you want to make permanent in the Constitution. But even then bringing the right to privacy as absolute right of an individual was sidestepped.
Cut to 2015. The government departments were in disagreement over disclosure of personal data that could invade privacy. At least MHA was of the view that the proposed law on right to privacy requires rewriting. Section 15 of the proposal Bill said, “No person shall without the prior consent of the data subject, disclose to any other person, any personal data of that data subject.” It went on to say, “The disclosure of personal data made under that section shall be limited to such extent which is necessary to achieve the purpose for which the disclosure is sought.”
Now, this was catch-22 situation. The government cannot specifically mention a purpose and can never confine data collection operation because data is the most precious commodity for various agencies. The ministry said, “Provisions of section 15 of the bill will adversely impact on the collection of personal data by intelligence agencies. Though the exemption for government intelligence agencies is provided, it can only be invoked if the requested data controller (like Aadhaar) is also in agreement with the fact that such data is being collected on grounds of protecting national security. The purpose mentioned under section 15 (3) needs to be certain, unambiguous and limited to scope. It would be rarity for agencies to have such a qualified ‘purpose’ in the very beginning of their enquiries.”
This makes one thing very clear: The effort was to make the right to privacy law as vague as possible so that it could be interpreted in more than one way. The debate also ventured into whether a government agency can be dragged into court over violation of right to privacy. Section 65 of the proposed privacy law had provided special provision for intelligence and law enforcement agencies. But, interestingly, section 64 intended to take that away by providing scope for initiating civil proceedings against any person, including an intelligence agency.
The concern on at least this issue appeared genuine as court proceedings would leave intelligence agencies saddled with the responsibility of defending themselves against all sorts of litigation and investigation, and they would expose methods, capabilities and sources of intelligence agencies compromising agencies’ functioning. However, one issue that the government failed to address was maintaining the delicate balance between protecting privacy and securing national interest.