Context: Responding to WhatsApp's lawsuit challenging new digital rules on grounds of violation of user privacy, the government last week said it is committed to the right to privacy of citizens but it is subject to "reasonable restrictions" and "no fundamental right is absolute".

• Rebutting WhatsApp's arguments, Union IT Minister Ravi Shankar Prasad said: "The government of India is committed to ensuring right to privacy to all its citizens as well as having the means and the information necessary to ensure public order and maintain national security. It is WhatsApp's responsibility to find a technical solution, whether through encryption or otherwise, that both happen."
• But he asserted that "no fundamental right, including the right to privacy, is absolute and it is subject to reasonable restrictions," and calling for details of the "first originator of information" was an example of such a "reasonable restriction"
• In this edition of Big Picture we analyse if Fundamental Rights are absolute and what are reasonable restrictions.  

Key Points

• “The judgement reads that personal liberty is not an absolute right but liable to the restrictions which will be examined by case to case basis.”
• “The underlying point is that privacy is not an absolute right. It is a right even in our Constitution. If it is a Fundamental Right under Article 21, which is subject to restriction that it can be restricted by a procedure established by law, that procedure established by law obviously has to be fair, just and reasonable procedure.”
• Citing from the judgement, the government said that as per the court order it required a careful and sensitive balance between individual interests and legitimate concerns of the State.
• The court has listed five such legitimate aims in its order – national security, prevention and investigation of crime, innovation and the spread of knowledge, and stopping the leakage of social welfare benefits.

About Fundamental Rights in India

• Fundamental rights are the basic human rights enshrined in the Constitution of India which are guaranteed to all citizens.
• They are applied without discrimination on the basis of race, religion, gender, etc.
• Significantly, fundamental rights are enforceable by the courts, subject to certain conditions.

Articles 12-35 of Indian Constitution deal with Fundamental Rights, six fundamental rights are as follows

• Right to Equality (Article 14-18)
• Right to Freedom (Article 19-22)
• Right against Exploitation (Article 23-24)
• Right to Freedom of Religion (Article 25-28)
• Cultural and Educational Rights (Article 29-30)
• Right to Constitutional Remedies (Article 32)

Fundamental rights are not absolute rights, They have reasonable restrictions which means they are subject to the conditions of state security, public morality and decency and friendly relations with foreign countries.

• Fundamental rights can be amended by the Parliament by a constitutional amendment but only if the amendment does not alter the basic structure of the Constitution.
• Fundamental rights can be suspended during a national emergency, However the rights guaranteed under Articles 20 and 21 cannot be suspended.
• The application of fundamental rights can be restricted in an area, which has been placed under martial law, or military rule.

Fundamental Rights Available Only to Citizens
Famous Cases on Fundamental rights

• In 1965 - Sajjan Singh case, the Supreme Court held that the Parliament can amend any part of the Constitution including fundamental rights.
• In 1967, the verdict of the Golaknath case said that the fundamental rights cannot be amended.
• In 1973, in the Kesavananda Bharati case, SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment - Judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In 1981, the Supreme Court reiterated the Basic Structure doctrine - It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.
• In 2020, SC has ruled that reservation in the matter of promotions in public posts is not a fundamental right and a state cannot be compelled to offer the quota, if it chooses not to ( Articles 16(4) and 16(4A) of the Constitution give states the power to make such reservations) and No mandamus can be issued by the court directing state governments to provide reservations.

Road Ahead

• The present issue is a storm in a tea cup and we will die down soon. However the large issue will continue without any reasonable solutions. It is wrong for social media platforms or Tech giants to dictate terms for sovereign states, if we give it now it will lead to something worse later. When tech giants can comply with rules in another countries they can comply with Indian rule as well. As far as fundamental rights are go they are not absolute even the constitution says there have to be reasonable restrictions. However there is no standard defination of reasonable restrictions and it is for Parliament to decide for the opposition to raise concerns if there are any and for the court to finally intervene if they have to. The due process has to be followed.