Among a few historic judgments the Supreme Court is expected to pronounce this week is the verdict on whether right to privacy can be elevated to the status of a fundamental right under the Constitution. This verdict is likely to define the relationship between Indian citizens and the state in the digital era, and will impact the outcome of several cases where aspects of Aadhaar have been challenged, with petitioners arguing that making the scheme mandatory violates rights to privacy and equality.
The verdict on right to privacy and Aadhaar, on which much has been speculated on in public debates, is one of the final verdicts Chief Justice JS Khehar will deliver before retiring on 27 August. Other judgments likely to be announced this week include a verdict on triple talaq.
The other judges hearing the case are Justice J Chelameswar, Justice SA Bobde, Justice RK Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer.
On this case, while critics have said that the 12-digit biometric unique identity number Aadhaar violates privacy and helps government spy on people, the government has said citizens have a right to privacy but it is not an absolute right. Judges have differed with the government, saying, “Textually it is correct today that there is no right to privacy in the constitution. But even freedom of press is not expressly stated. This court has interpreted it.” Here is a summary ahead of the apex court's verdict:
On the concept of privacy
The counsels for the petitioners, who include top legal eagles like Gopal Subramanium, Soli Sorabjee and Shyam Divan, have made an argument showing how linking of Aadhaar number violates personal privacy of citizens. So far, the apex court appears to be in agreement that there exists an 'amorphous' or undefined concept of privacy in the fundamental rights.
The government asserted that the linking of Aadhaar with PAN cards was made mandatory to weed out fake PAN cards, which were used for terror financing and circulation of black money, while terming the concerns over privacy as "bogus". It said that while citizens have a right to privacy, it is not an absolute right under the Constitution.
What will the Supreme Court decide on?
The nine-judge bench will not decide the fate of Aadhaar in terms of its validity, but only the nature and status of the right to privacy under the Constitution. The ruling will, however, have a far-reaching impact on the function and currency of the Aadhaar card.
According to a report in The Hindu, the court said that in order to recognise privacy as a right, it would first have to define it. That would pose a serious challenge as an element of privacy pervaded all fundamental rights enshrined in the Constitution.
Effect of a fundamental right to privacy on State action
Petitioners argued that the entire degree of protection granted to the right to privacy is higher as a fundamental right, Asheeta Regidi reported. Recognising privacy as a fundamental right will create a change in the relationship between the State and the citizen. For example, taxi aggregators in Mumbai have to mandatorily hand over their professional and personal data to the State. Once it is a fundamental right, the State's power to collect and handle data will change, and perhaps be diluted.
Also, the State's collection of biometric data for Aadhaar through the exercise of executive fiat wouldn't have been possible without first enacting a law which passes the muster of Articles 14, 19 and 21.
Kharak Singh and MP Sharma cases as bad law
The main reason for the reference of this case to a nine-judge bench are the conflicting cases of Kharak Singh and MP Sharma, six and eight-judge judgments respectively which denied the right to privacy, and numerous other judgments that followed based on them. There are now over 40 judgments today given by Indian courts which recognise the right to privacy, but these are given by benches of a lower strength. Thus, a lot banks on the Supreme Court's decision on whether the Kharak Singh and MP Sharma cases are 'good law'.
The counsels for the petitioner have made an arguments that they are not, particularly focusing on the fact that neither of these cases dealt specifically with the right to privacy. Also, these judgments were passed in the 1950s and 1960s, long before the digital age, they said.
How other countries view privacy
In the United States, while the right to privacy is not mentioned in their constitution, the Supreme Court has interpreted several amendments to say that the right does exist. The Fourth Amendment prevents search without a "probable cause". Other amendments allow Americans to take certain decisions about their bodies and their private lives without government interference. There are several other laws as well to protect privacy in the United States.
In 2015, Japan adopted a system of citizen identification which united personal tax information, social security and disaster relief benefits. It was launched amid protests by critics who were worried by the privacy concerns it posed. The 'My Number' programme has been implemented in co-existence with the privacy laws in Japan. As it is still being integrated into the Japanese daily life, the effects and clashes between privacy and governance are yet to be seen.
Europe is governed by the Data Protection Directive which restricts how information can be processed and used. It requires that member states "implement technical and organisational
measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access”, and to establish judicial remedies for breaches.
measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access”, and to establish judicial remedies for breaches.
With inputs from agencies
