Supreme Court hearing Aadhaar case: If top court accepts Centre's approach to privacy, ruling may be very restricted

The arguments on behalf of the Centre are in progress before the 9-judge bench at the Supreme Court. As expected, the arguments are against the recognition of privacy as a fundamental right. In a partly positive development, the counsels for the Centre, who include current Attorney General KK Venugopal, have conceded that some aspects of privacy are a fundamental right. However, it is being sought to restrict privacy to existing fundamental rights, and to deny a general fundamental right to privacy.

At this stage, in view of the concession of the Centre and the various questions posed by the bench to the counsels, the court appears to be leaning towards recognising a right to privacy. However, if the court accepts the Centre's approach, the right to privacy granted will be very restricted.

The arguments will resume on Tuesday. Here is a look at the arguments made so far against privacy.

Is privacy relevant to developing countries?

One of the surprising arguments made against privacy is that this is a claim better suited to developed countries. Privacy, it was argued, is not suitable for a developing country like India where the majority of the masses don't even have access to basic services. For this reason also, judgments and laws established in other countries like America have no applicability in India, where the reality is very different.

Laudatory Aadhaar Act cannot be questioned on privacy claims

For the same reasons, it was argued, a laudatory act like the Aadhaar Act, designed for enabling better delivery of public welfare and social services to the masses, could not be defeated on privacy claims. Several recent Supreme Court judgments supporting the use of Aadhaar, such as those directing the use of Aadhaar for admissions, linking with mobile numbers, etc., were cited in support of this contention.

SC observes privacy not an elitist concern

Both these arguments were not accepted by the Bench. The Bench in this case pointed out that privacy is not an elitist concern, but was of equal concern to the masses. The Bench cited the example of forced sterilization of slum dwellers for population control, a state act which could be controlled perhaps only through a claim of privacy. Further, the bench noted that if privacy was not a fundamental right, then there would be a blanket sanction on anything the state can do.

In fact, even in previous landmark judgments, the Supreme Court had held that privacy was as relevant to an Indian home as to an American one.

Legitimate versus Compelling state interest

Representational image. News18

Representational image. News18

A debate also ensued on the extent of validity of state actions which could not be questioned on claims of privacy. The counsels for the Centre suggested the lighter standard of legitimate interest, or a legal or lawful act of the state, as opposed a compelling interest. The Court was not happy with this argument, pointing out that most acts of the state were out of legitimate interest, such as the state controlling crime, but restrictions on the state's power remained, such as an accused's rights under Article 20 (eg.: right against self-incrimination).

Only some aspects of privacy are a fundamental right

Another argument was that privacy is not a homogenous right, and all of its aspects could not be a fundamental right. The Supreme Court responded to this that the issue before it was whether any, even one aspect of privacy could amount to a fundamental right. Moreover, even existing fundamental rights were not without restrictions, so why was privacy any different?

To this, the attorney general conceded that some aspects do deserve protection as a fundamental right. However, this is restricted to those aspects of privacy which can be derived from fundamental rights. For example, the right to bodily integrity which stems from the right to life may be accepted on those grounds, and not as a facet of a right to privacy. Privacy as an independent fundamental right does not exist.

Data given for passports, voter cards, is in the public domain?

On being questioned by the bench on which aspects of privacy deserved protection, it was stated that informational privacy, for example, is not a constitutional guarantee. It was argued that there can be no right to privacy for information already in the public domain. Examples cited were the data disclosed by citizens for voter registration, biometrics for passports, and for property registration.

This is a troubling argument, which seems to consider data given to the government as being in the public domain. For example, people provide their addresses for acquiring a voter card, but this does not thereby mean that the address is in the public domain and can be published on, say the internet.

Similarly, looking at the property registrar, the registrar is open to the public. However, if a data broker preparing a file on an individual for commercial purposes accesses and includes data from such a registrar, it will be a violation of privacy. These are issues which need to be looked into.

Need for robust mechanism to protect Aadhaar like databases

On this, reference was made to census laws, for example, which contain confidentiality provisions. The privacy provisions in the Aadhaar Act were pointed to, but the Judges pointed to their insufficiency. For example, while biometric data is protected, information like medical histories and mobile numbers were not. The judges pointed to the need for a robust mechanism to protect the privacy of such huge databases from persons like commercial service providers, who were likely to spam people with messages and advertisements.

Kharak Singh and MP Sharma cases

On these cases, the main argument made was that they had specifically denied the right to privacy. Moreover, Constituent Assembly while framing the Constitution had denied privacy as a fundamental right. To this, the bench observed that much had changed since the times the Constituent Assembly debated and rejected the right to privacy.

Will privacy be held to be an independent fundamental right?

On the whole, the apex Court appears to be reluctant to completely reject privacy as a fundamental right. If upheld, the main question that will remain will be its recognition as an independent fundamental right or as a right restricted to the protected facets under existing fundamental rights.

(Sources of the arguments- Written Submissions of the counsels at Live Law and live coverage of the case on Twitter handles of Prasanna S and SFLC).


Published Date: Jul 28, 2017 03:44 pm | Updated Date: Jul 28, 2017 03:44 pm


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