Revision as of 22:07, 21 August 2017

The legal position

Not every aspect of privacy is fundamental right: SC

Krishnadas Rajagopal, Privacy is a fundamental but wholly qualified right: Centre, July 26, 2017: The Hindu

Chief Justice Khehar sums up Centre’s arguments as also saying that not every aspect of privacy is a fundamental right and it “depends on a case-by-case basis.”

The Centre told the Supreme Court that privacy was indeed a fundamental right, but a “wholly qualified” one.

This led a nine-judge Constitution Bench headed by Chief Justice of India J.S. Khehar on Wednesday to sum up Attorney General K.K. Venugopal’s submission thus: “You are saying that right to privacy is a fundamental right. But not every aspect of it [privacy] is a fundamental right. It depends on a case-to-case basis.”

Mr. Venugopal agreed to the court’s interpretation of the government stand on privacy.

Earlier the court kept prodding Mr. Venugopal to make the government’s position clear. At one point, Chief Justice Khehar even said that the reference to the nine-judge Bench could be closed if the Centre agreed that privacy was a fundamental freedom.

“Petitioners had argued that there is a fundamental right to privacy. You [Centre] had stalled them by saying that privacy is not a fundamental right. You quoted our eight and six judges’ Benches’ judgments to claim privacy is not a fundamental right. So, the five-judge Bench hearing the Aadhaar petitions referred the question ‘whether privacy is a fundamental right or not’ to us. Now if you are saying that privacy is a fundamental right, shall we close this reference right now itself?” Chief Justice Khehar asked Mr. Venugopal.

The Attorney General explained to the Bench that the government did not consider privacy to be a single, homogenous right but rather a “sub-species of the fundamental right to personal liberty and consists of diverse aspects. Not every aspect of privacy is a fundamental right.” Some aspects of privacy were expressly defined in the Constitution, while some were not.

Mr. Venugopal said there was a “fundamental right to privacy. But this right is a wholly qualified right.”

He submitted that citizens could not agitate against Aadhaar, saying it was a violation of their right to privacy. And as far as Aadhaar was concerned, privacy was not a fundamental and absolute right. The state could subject privacy to reasonable restrictions in order to preserve the right to life of the masses. He said an elite few could not claim that their bodily integrity would be violated by a scheme which served to bring home basic human rights and social justice to millions of poor households across the country.

At this, Justice Rohinton Fali Nariman retorted: “But Mr. Venugopal, don’t forget the little man’s right to privacy, everything about right to privacy is not connected to the Aadhaar issue.”

To this, Mr. Venugopal argued that privacy was submissive to the fundamental right to life under Article 21. Aadhaar was a measure by the state to ensure the teeming millions of poor in the country were not reduced to lead an “animal existence.”

“Petitioners have divided privacy into the realms of the body and mind. They say the three aspects of privacy include bodily integrity, dissemination of personal information and the right to make own choices. Tell us which among these aspects do not fit the Bill under Article 21 [right to life],” Justice Nariman asked.

"You are wrong to say that privacy is an elitist construct. Privacy also affects the masses. For example, there is an increase in instances of cervical cancer among women in impoverished families. Right to privacy of these women will be the only right standing in the way of State subjecting them to a ‘health trial’ or, say, compulsory sterilisation," Justice D.Y. Chandrachud pitched in.

As an aside, Justice Chandrachud suggested a middle way in the Aadhaar conundrum, saying personal data could be handed over to the state, provided it collected the personal information under a statutory law; had facilities to keep them secure; and used the data only for a legitimate purpose.

But Chief Justice Khehar intervened, saying “we [the nine judges] are here to decide whether there is at all a fundamental right to privacy... The question whether Aadhaar violates privacy will be decided later by the five judges. So now you [Centre] have said privacy is a fundamental right,” the Chief Justice told Mr. Venugopal.

At this, Additional Solicitor General Tushar Mehta intervened for some of the States, saying he wanted to argue that “privacy is a right but not a fundamental right.”

“But he [Mr. Venugopal] has already said that privacy is a fundamental right,” Chief Justice Khehar responded to Mr. Mehta.

Challenging aspects of Aadhaar

The Times of India, Aug 21 2017

Aadhar card and concerns related to privacy, a timeline, 2012-August 2017; The Times of India, Aug 21 2017

A nine-judge Constitution bench is set to give its judgment on whether a fundamental right to privacy exists under the Constitution.The verdict will remain authoritative for decades, defining the relationship between citizens and the state in the digital era. It will rightaway impact the outcome of about 24 cases where various aspects of Aadhaar have been challenged, petitioners arguing that the scheme and making it mandatory violates fundamental rights to privacy and equality.Here, a lowdown ahead of the privacy hearing

Will the nine-judge bench decide on Aadhaar?

The bench will decide whether a fundamental right to privacy exists under the Indian Constitution. This bench will not decide the fate of Aadhaar, only the nature and status of the right to privacy under the Constitution.

The SC ruling will, however, be extremely important in deciding the fate of Aadhaar and will impact all public and private services with which Aadhaar is linked, from requesting an ambulance to opening a bank account. It will have far-reaching ramifications in this digital age: how much can the state know about us, and what it can do with that knowledge? The right to privacy impacts many more issues than just Aadhaar and will allow claims in the context of beef ban laws, prohi bition, women's reproductive rights as well.

What are the arguments on either side?

The petitioners say that the SC has recognised the fundamental right to privacy in an unbroken chain of judgments. They say privacy is associated with and is the bulwark of other rights. There can be no dignity without privacy , and dignity is part of the Preamble, which is part of the Constitution's basic structure. Privacy is located in the golden trinity of Articles trinity of Articles 14, 19, and 21. They argue that the Constitution is a living document. Its interpretation must be in accord with passage of time and developments in law. They say India has international obligations to recognise a fundamental right to privacy.

The respondents say that privacy is a vague concept, and vague concepts cannot be made fundamental rights. Some aspects of privacy are covered by Article 21 and its other aspects should be regulated by laws only , not separately as a fundamental right.Right to life of others is more important than right to privacy .If right to privacy impedes Aadhaar, then it would deprive millions of food and shelter. They argue framers intentionally did not include privacy in fun damental rights section.

Without linking Aadhaar, will government schemes be impacted?

There is conflicting data.A 2012 study by National Institute of Public Finance and Policy estimated that linking Aadhaar could save a tenth of money spent on PDS and MGNREGS schemes. But the study was criticised for using outdated data on leakages, and overestimating the number of ghost beneficiaries.

It is also unclear how much of the `savings' from linking Aadhaar to schemes is because genuine beneficiaries are now excluded. In a study of Hyderabad PDS outlets linked to Aadhaar, nearly 10% of households reported technical problems with Aadhaar due to which they did not receive rations.The Economic Survey 201516 claimed that linking Aadhaar to LPG subsidies had saved the government 25%. But the Comptroller and Auditor General (CAG) estimated that 92% of this `saving' was due to the fall in global oil prices.

Apart from these uncertain savings, rollout of government schemes would continue as earlier without Aadhaar, since Aadhaar is meant to help existing schemes. In fact, there have been reports that rollout of Aadhaar-based systems is posing some problems. Fingerprint authentication often does not work if labourers' hands are callused; the elderly and disabled have trouble accessing affordable transport go to government centres, instead of sending others as they did earlier; technical problems abound with uneven quality of connections and devices.

Is the demand for citizen data the issue, or the security of the data?

Both. Creating one database of all details for an all-purpose ID (Aadhaar) creates its own problems -the spectre of surveillance, the possibility of exclusion from all government services, among others. On the security front, several experts believe that for centralised databases, “the question is not whether it can be hacked, but when.“