Right to privacy, fundamental or not?

Right to privacy, fundamental or not?

A nine-judge Constitutional bench has been appointed for hearing petitions challenging the constitutional validity of Aadhar and for answering the limited question 'whether right to privacy is a fundamental right or not'.

The Aadhar card is a 12-digit unique identification number assigned to every signee containing his/her personal details like name, address, fingerprint, eye scan. The card acts as a proof of identification and residence. A five-judge Constitution bench of the Supreme Court comprising of Chief Justice of India JS Khehar, and Justices DY Chandrachud, J Chelameswar, SA Bobde and Abdul Nazeer, passed the order referring the Aadhar matter to the larger bench to decide whether linking of the pan card with the 12-digit biometric identification number would breach privacy.

The nine-judge bench headed by Justice Khehar is expected to take up and conclude its hearing on Wednesday itself.

It was in August 2015, the Supreme Court bench of Justices J. Chelameswar, S.A. Bobde and C. Nagappan decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.

The Bench observed that it is essential to decide 'whether right to privacy is a fundamental right or not' before adjudicating on the petitions challenging Aadhar. According to the Bench, it is also necessary to decide the correctness of the decisions taken in MP Sharma case and Kharak Singh case.(livelaw.in)

M.P. Sharma case (1954) involved Article 20(3) of the Constitution which is right against self-incrimination. Kharak Singh case (1962) involved a constitutional challenge to certain forms of surveillance carried out by the police upon a "history-sheeter's" residence, which included tracking his movements. In both the cases the Supreme court had ruled that right to privacy is not a fundamental right.

Keeping all these discussions in mind , the court had framed various questions, including as to whether right to privacy is a fundamental right or not. At an earlier hearing, then Attorney General of India Mukul Rohatgi, while backing the Aadhar card scheme, had contended that right to privacy was not a fundamental right. "No judgment explicitly cites right to privacy as a fundamental right. It is not there under the letters of Article 21 either. If this court feels that there must be clarity on this subject, only a Constitution Bench can decide," the AG had said.

Once the privacy question is settled by the nine-judge constitution bench, the remaining issues related to Aadhar would be heard by a smaller bench. If the large bench were to decide that Indian citizens indeed have the right to privacy, the smaller bench will define the boundaries of that right. (livemint.com)

The petitioners have claimed that collecting and sharing of biometric information, as required under the scheme, is a breach of the "fundamental" right to privacy.

The government has a different view and is pushing for Aadhar. According to government, Aadhar is necessary to plug leakages in subsidy schemes and to ensure benefits reach those targeted. But critics say the move violates privacy, is vulnerable to data breaches and helps government spy on people. (hindustantimes.com)


War of words in the courtroom

The hearing was set off by the government's stance – represented in court by recently appointed Attorney General K.K. Venugopal. He argued that the right to privacy is not a fundamental right and instead falls under common law. To bolster his argument, Venugopal cited the 1963 Kharak Singh case to emphasise that there is no right to privacy under Article 21 and Article 19 (1)(d) of the constitution. According to the AG, the framers of India's constitution consciously chose not to have a fundamental right to privacy

The bench – primarily justice Chandrachud –pointed out that this argument may not hold water because the "position of law changed after the Maneka Gandhi case".

In the 1977 Maneka Gandhi case, she was asked to surrender her passport under section 10(3)(c ) of the Act in public interest. Maneka Gandhi immediately wrote a letter to the Regional passport officer New Delhi seeking in return a copy of the statement of reasons for such order. However the government of India, Ministry of External Affairs refused to produce any such reason in the interest of general public.
Maneka Gandhi then filed a writ petition under Article 32 of the constitution in the Supreme Court challenging the order of the government of India as violating her fundamental rights guaranteed under Article 21 of the constitution.

The court finally held that the right to travel and go outside the country is included in the right to personal liberty guaranteed under Article 21. The court also upheld that section 10(3) (c) which asked Gandhi to surrender her passport under the Passport Act is not violative of right to liberty as it is implied in the provision that the principles of natural justice would be applicable in the exercise of the power of impounding a passport . The defect of the order was removed and the order was passed in accordance with procedure established by law.

To Chandrachaud's argument , Venugopal pointed out that a five-judge bench could not decide the correctness of the Kharak Singh case and that it would require either a bench of seven or nine judges to decide. (thewire.in)

Government's stance

What may have once seemed like a conspiracy theory – that the government was in a mad rush to expand 'Project Aadhar' änd also to protect it from any legal challenge – is now plainly obvious. Aadhar was sold as a panacea for the problem of leakage in welfare delivery – as a means of ensuring that subsidies are actually delivered to intended beneficiaries. Instead, over time it has become a tool for exclusion , denying beneficiaries their due and allowing the government to sell this as "savings". (scroll.in)

More dangerously, from a privacy standpoint, the project has pivoted from being about welfare delivery to becoming a mandated identity document across every forum – governments now require Aadhar for everything from birth certificates to college admissions to phone connections. And because that one 12-digit-number is seeded across these various databases, the potential for profiling citizens becomes all too easy with Aadhar. (scroll.in)

The 12 - digit unique identification number has confidential information, which if leaked can put the whole country in jeopardy. Increasingly, the war at the present moment has shifted from ground to cyber. It is important to make sure that at any instance, we cannot afford a leakage of such massive confidential data. The Supreme Court's decision on this issue will be a landmark jugdement.

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