New Delhi: Supreme Court Justice Ravindra Bhat has said that in the absence of clearly enunciated legislation on data, the right to privacy has become “somewhat academic.” In the same speech on Saturday, September 25, the judge ascribed to the state the responsibility of proactively taking measures as the enforcer of fundamental rights to ensure that all private individuals or entities, who are not directly bound by fundamental rights are compelled to respect them through the law, LiveLaw reported.
Justice Bhat, while speaking at the second Professor Shamnad Basheer Memorial Lecture, expressed that the role of the state has shifted from being the provider to a facilitator of services in the age of liberalised global economy, thus making it necessary for the state to nurture a culture of respect towards fundamental rights.
He said, “The state must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse, freely expressed without fear of reprisal by private entities or collectives.”
Data law
The judge discussed the right to privacy which has now become a fundamental right following the ruling in the Puttaswamy case, where a retired high court judge approached the Supreme Court in 2012 questioning the constitutional validity of the Aadhaar scheme implemented by the United Progressive Alliance (UPA) government.
According to the report, he emphasised the role of the private sector in providing data-related services and expressed helplessness in enforcing the fundamental right to privacy due to the lack of any effective mechanism except the Supreme Court ruling in the above-mentioned case. The fundamental rights of the Indian constitution are directly only enforceable against the state.
Also read: Health IDs: Unpacking the Narrative That Underpins India’s New Digital Superstructure
“The absence of legislation makes this right somewhat academic. In the absence of a clearly enunciated data law, which sets out the norms, rights and rights and remedies, the nature of that right is rendered, by and large, a dead letter, except in cases where the individual can approach the court and seek enforcement against the state,” the judge said.
Discrimination
Justice Bhatt stated that it is the need of the hour for the state to enact a universal law for enforcing the principles of equity, equality and non-discrimination in order to protect large segments of the Indian population who face injustice and discrimination in the private sector.
“We would not be the first if we enact such a law. The first was the South African legislature which enacted the Promotion of Equality and Prevention of Unfair Discrimination Act in 2000,” the judge said.
However, the judge said that until a universal law is made on the subject, it is only through fair sectoral regulations by an independent regulator that we can ensure that constitutional rights and values do not become defunct and ineffective in today’s private sector-driven age, LiveLaw reported.
Justice Bhat further stressed the violations of the fundamental rights occurring in the unregulated private sectors of mining, physical infrastructure, energy, telecom, internet and e-commerce related services where recruitment policies are often discriminatory since private employers are not directly liable under Article 15 (1) of the constitution.
“It is possible for them to blatantly discriminate against people on the basis of gender, caste, religion, language or any other ground including age. Sometimes, employment is denied for no ostensible reason… Industrial workmen often face arbitrary dismissal. Private entities hire workers on a contractual basis to keep costs low,” the judge said.
According to him, the use of the word ‘shall’ in Articles 14 and 15 (1) of the constitution should be understood broadly to impose an obligation upon the state to ensure constitutional values and guarantees are upheld everywhere rather than only in the direct provision of services by the state. Such an interpretation is consistent with the constituent assembly debates and several court decisions.