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The many public battles over the right to privacy

Should a Constitution Bench hear ‘privacy’ challenge to Aadhaar project? SC decides today — but it has had a fairly consistent view on the right to privacy so far.

Written by Maneesh Chhibber |
August 11, 2015 2:31:13 am
right to privacy, fundamental rights, fundamental right to privacy, Aadhaar card, Aadhaar biometric information, Aadhar card information, AG Mukul Rohatgi, Supreme Court, SC, india news, nation news Supreme Court

Today, A three-judge Bench of the Supreme Court will decide if there is merit in the Centre’s plea that petitions challenging the constitutionality of the ongoing project to provide Aadhaar cards to all citizens be referred to a Constitution Bench.

The government has taken the stand that the right to privacy, a key issue in the petitions, is neither guaranteed under the Constitution nor made available to citizens through a settled judicial pronouncement.

Attorney General Mukul Rohatgi has asserted that two Constitution Bench judgments — M P Sharma And Others vs Satish Chandra, District Magistrate Delhi (1954), an eight-judge decision, and Kharag Singh vs State of Uttar Pradesh (1962), a six-judge judgment — which held that the right to privacy was not a fundamental right, has not been overruled by any subsequent judgment by a larger Bench, and hence, the matter should be decided by a larger Bench.


Critics feel the Centre is only trying to create more confusion, and ensure that the issue drags on. Neither of the two judgments referred to by the AG pertains to citizens’ right to privacy per se. All that the judgments said was that the Right to Privacy is not mentioned in the Constitution — a fact. Subsequent judgments, though all by smaller Benches, specifically debated the right to privacy and held it to be a fundamental right, thereby broadening the scope of Article 21, which deals with the citizen’s Right to Life and Liberty.

The judgments noted that as signatory to the Universal Declaration on Human Rights and International Covenant on Civil and Political Rights, 1966, India had acknowledged the right of privacy, which is part of these documents.

The need (or otherwise) for well-defined privacy laws found more than passing mention in Constituent Assembly debates. The advent of modern tech tools, which have made the invasion of privacy easier than ever before, has made the debate hugely significant.

In 2011, the UPA government finalised a draft Bill on privacy, and set up a Committee of Experts headed by former Delhi High Court Chief Justice A P Shah to, among other things, “study the privacy laws and related Bills promulgated by various countries” and “to make specific suggestions for consideration of the DoPT for incorporation in the proposed draft Bill on Privacy”.

The panel recommended a new law to protect privacy and personal data in the private and public spheres, and the appointment of privacy commissioners at the Centre and in states. It listed nine principles of privacy, as also certain exceptions to the right to privacy — such as national security, public order, disclosure in public interest, prevention, detection, investigation and prosecution of criminal offences and protection of the rights of freedom of others.

In their challenge to the Aadhar project, the petitioners have pleaded that largescale collection of biometric data without foolproof security arrangements could result in breaches of confidentiality. They have also argued that by “forcing” citizens to part with personal data without any legislative backing for the Aadhar project, the government was infringing upon their right to privacy.

In Govind vs State of Madhya Pradesh (1975), the Supreme Court ruled that “…many of the fundamental rights of citizens can be described as contributing to the right to privacy”. The Bench, however, clarified that the right to privacy was not an absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to restriction on the basis of compelling public interest,” it said.

In Maneka Gandhi vs Union of India (1978), the SC, while talking of a “Triple Test for any law interfering with personal liberty”, held: “The law and procedure authorising interference with personal liberty and right of privacy must also be right, just, and fair, and not arbitrary, fanciful, or oppressive.”

In R Rajagopal vs State of Tamil Nadu [about the right of a Tamil magazine to publish the autobiographical diary of convicted murderer Auto Shankar, in which he had described alleged links with senior officers], the SC was called upon to decide if a person’s right to privacy allowed him to prevent another person from publishing someone’s biography.

“The right to privacy is implicit in the right to life and liberty guaranteed… by Article 21. It is a ‘right to be let alone’. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages,” the Bench ruled.

However, India still does not have a law to protect privacy. The 2011 Bill was a serious attempt, but suffered from lacunae, in particular, the absence of a clause that recognised the right as part of Article 21. However, the proposed law got struck in inter-ministry tussles. Last year, the government again started the process of bringing a privacy law.

In recent times, the conflict between a citizen’s right to know (through the RTI Act) and others’ right to privacy has engaged attention. PM Manmohan Singh once said: “A fine balance [is] required to be maintained between right to information and the right to privacy, which stems out of the fundamental right of life and liberty. The citizen’s right to know should definitely be circumscribed if disclosure of information encroaches upon someone’s personal privacy. But where to draw the line is a complicated question.”

When intercepts of his phone conversations with lobbyist Niira Radia became public, Tata Group chairman Ratan Tata asked the SC to protect his right to privacy.

If the court decides on Tuesday that there is no need to refer the Centre’s plea to a larger Bench, the debate on whether citizens have a right to privacy will be settled — for now.

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