Polity (Fundamental Rights) by Viraj C. Rane

Model Answer

Question #1. In the jurisprudence of Article 21, Right to be forgotten is proving to be a corollary of Right to Privacy. Explain. 10 marks (150 words)

Ans

Concept/Syllabus Map: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure (Topic: Right to be forgotten, Article 21)

Approach:-

• The question demands analysis of the right to be forgotten and right to Privacy in light of Article 21
• Introduce the topic about writing the context about Right to be forgotten.
• Explain what is right to privacy.
• How right to be forgotten is proving to be a corollary of Right to Privacy.
• Conclude by writing need for Right to forgotten to be harmoniously constructed with the right to information and the freedom of expression.

Hints: -

The right to be forgotten, also known as the right to erasure, was practiced earlier in Argentina and European Union. The constitution bench headed by Chief Justice of India, J.S Khehar ruled that the Right to privacy is an intrinsic part of the Right to Life and Personal Liberty under Article 21, Part III of the Constitution.

What is the Right to Privacy?

• The right to privacy is to restrain government and private actions that threaten the privacy of the Individuals.
• In the case of Kharak Singh vs. State of Uttar Pradesh, first time, the Supreme Court of India held that right to life includes personal liberty and thus, right to privacy.
• In the K.S Puttaswamy vs. Union of India case, 2017, the Right to Privacy was declared as a fundamental right by the Supreme Court.

• 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.

What is the Right to be forgotten?

• It is the right to have publicly available personal information removed from the internet, search, databases, websites, or any other public platforms, once the personal information in question is no longer necessary, or relevant.
• The RTBF gained importance after the 2014 decision of the Court of Justice of the European Union (“CJEU”) in the Google Spain case.

How right to be forgotten is proving to be a corollary of Right to Privacy-

• Supreme Court in K.S. Puttaswamy case vs. Union of India, 2017 noted that the Right to be forgotten was a part of the broader part of right to privacy.
• The Right to be forgotten emerges from the right to privacy under Article 21 and partly from the right to dignity under Article 14.

Government initiative for Right to be forgotten:-

• 'Right to be forgotten' in Personal Data Protection Bill: - This bill brought by B.N Srikishna committee, aims to set out provisions meant for the protection of the personal data of an individual.
• Clause 20 under Chapter V of this draft bill titled “Rights of Data Principal” mentions the “Right to be forgotten.

Challenges to Right to be forgotten:-

• Danger to Journalism:-News should be circulated without any restriction and independently by executing 'Right to be forgotten' there will be certain restriction upon the journalist to not disclose certain people's history sheet and their past and for presenting this news they have to wait for adjudicating officer's decision as it is in Personal Data Protection Bill.
• Violation of Article 19:-The constitution under article 19 grants us fundamental Right of freedom of speech and expression. If RTBF legalizes, some websites and content creator have to remove some data from their channels which will affect their Right to freedom of speech and expressions.

Right to be forgotten as a corollary of Right to Privacy is an evolving right in India.  The judicial precedent leads towards acceptance of the right. The government has also tabled the Personal Data Protection Bill. The Bill attempts to provide the citizens with more autonomy over their data and encapsulates the theory behind the EU's General Data Protection Regulation. Hence, the right to be forgotten as a corollary of right to privacy has to be harmoniously constructed with the right to information and the freedom of expression.

Question #2. Critically evaluate the significance and criticism of fundamental rights. Have excessive limitations on the fundamental rights diluted their importance? 15 marks (250 words)

Ans

Approach                                        

• Briefly describe fundamental rights (30 words)
• Explain their significance (50 words)
• Shortcomings in defining fundamental rights (70 words)
• Limitations on exercising fundamental rights and their impact (70 words)
• Conclusion (30 words)

Hints:

The fundamental rights are those rights, which are vital for the development of any human being. The Constitution of India laid down an elaborate set of rights for the people of India. The idea that there are certain basic rights essential for a human existence which are inherent in the individual are manifested in Part 3, from articles 14 to 30 of the Constitution as Fundamental Rights.

Significance of the Fundamental Rights:

• Fundamental Rights are the beacon which the constitution provides against any abuse of power by the government or government agency.
• The Fundamental Rights were intended to serve three important purposes namely:
  • To prevent the executive from acting arbitrarily.
  • To ensure some amount of security and protection to various types of minorities.
  • To promote and foster social revolution by establishing the conditions necessary for achieving justice- social, economic and political.

Shortcomings in defining Fundamental rights:

• The Fundamental Rights do not comprise economic and social rights such as the right to work, rest and leisure and social security. According to Dr.Ambedkar, “Socio Economic rights are necessary to enjoy political rights”.
• Fundamental rights are not absolute. Restrictions, exceptions and explanations with which the fundamental rights are hedged around, have the effect of depriving the rights in practice.
• Vast gap exists between the fundamental rights guaranteed in the Indian Constitution and reality of these rights in India today.
• The provision for Preventive Detention and the suspension of Fundamental Rights has also been criticised.
• Although Art. 17 has constitutionally prohibited untouchability, the evil still exists in many parts of the country.
• Article 21 is open to wide interpretations and the judiciary has every now and then added features to the rights coming under Right to life and personal liberty.

Limitations on the fundamental rights have following impacts:

• In India, fundamental rights are special legal rights provided in the Constitution itself and remedies for them, also a fundamental right, people can directly approach high courts and Supreme Court under Article 226 and 32 respectively.
• Fundamental rights in India have two kinds of limitations:

–   Fundamental rights are not absolute in India. Every fundamental right in India has a “but government can” clause in the end, that means the government can violate them for affirmative action. Eg :-Aadhaar Act legislated by the government. The government asserted its right to use this provision of ‘reasonable restrictions’ for national security and social welfare benefits. Individual rights to privacy got compromised here. 

– Before the 1974KesavanandaBharati case, the government could take away fundamental rights by constitutional amendment, as it is a legal right, but since then, the basic structure doctrine has been invented by the Supreme Court. It takes into account the substantive nature of fundamental rights. For example, freedoms given in Article 19 can be taken away for public order, morality etc.          

• The constitution makers regarded democracy to no avail if civil liberties, like freedom of speech and religion were not recognized and protected by the State.
• In the ShreyaSinghal vs Union of India case, section 66A of IT Act was challenged since it violated individual freedom of speech and expression.
• There are various draconian laws thatrestrict fundamental rights of individuals and thus restrict Political, Social and economic development of a nation.

Conclusion:

The Fundamental Rights, as contained in Part III of the Constitution, are neither rooted in the doctrine of natural law nor are they based on the theory of ‘reserved rights’. They are conferred rights and embody the social values of the present generations. As the social values are not static, the Fundamental Rights are subject to changes and modifications in order to fulfill the aspirations of the people in the context of changed conditions and the environment in which they live along with higher concerns of national security and public order.