Aadhaar privacy case: Centre's regressive attitude towards privacy earns criticism from SC Bench

The Centre’s stand on privacy is becoming increasingly regressive, with assertions that include that privacy can be traded for food, personal liberty does not include the mind, and that a data protection law cannot be challenged on the grounds that the protection is inadequate.

Representational image. Reuters

Representational image. Reuters

Luckily, the apex Court was not in support of these arguments, asking if constitutional rights were subservient to economic development. A discussion also ensued on the sufficiency of privacy as a statutory right. One notable point which came up was that a committee has been constituted to draft a data protection law in India.

Today, the arguments on behalf of the State are to conclude, and thereafter the counter-arguments of the petitioner will follow.

Contradictory stand taken in WhatsApp case
Before delving into discussions between the counsels and the bench, it is worth noting the surprising stand on privacy taken by the State in the WhatsApp case last week. Contradicting all its assertions in the Aadhaar privacy case, the Centre argued in the WhatsApp case that personal data is integral to life and dignity under Article 21.

This surprising stand is reflective of the constant tussle between private parties and the state over possession of people’s data. Each strives to protect the data from the other, on the grounds of privacy, while retaining their own control and access to the data. The same thing can be seen with companies like Facebook and their reluctance to share data with authorities despite a Court order, while issuing the new WhatsApp Privacy Policy undermining people’s privacy. It can also be seen in the encryption battles, with WhatsApp promising end-to-end encryption, and the state seeking to restrict it.

This is yet another reason why a constitutionally recognised right to privacy is so crucial today. The WhatsApp case, incidentally, has been postponed to September, pending the decision of the nine-judge bench in the Aadhaar case.

Can privacy be traded for food?
The counsel for the State argued that upholding a right to privacy could deny millions of poor people the right to food. The state offered the following choice — two square meals per day, or privacy, asserting that a poor person would pick the former.

This argument of the Centre indicates a troubling attitude towards privacy these days, both by private parties and the government. As though privacy is something that can be traded, either for food under the Aadhaar scheme, or for a free service like WhatsApp.

The Bench warned against this attitude, describing this as a cruel choice, asking whether this meant that constitutional rights were subservient to economic development? The Bench, in fact, also asked the question that has been on every privacy advocate’s mind — Why is it not possible to have schemes like Aadhaar and also not invade privacy?


Personal liberty does not include the mind
To further the argument that privacy is not a fundamental right, the counsels stated that personal liberty protected under Article 21 was restricted to physical liberty, and did not include the mind. The Bench questioned how such a statement could even be made today.

Data is protected as ‘property’, not a fundamental right
Furthering the argument that privacy and data could be protected only as a statutory right, the counsels argued that the protection of data was traceable to Article 300A of the Constitution. This is the provision granting property as a legal right to the people, not a fundamental right.

The counsels argued that the State holds people’s data in a fiduciary capacity. This relationship was governed by common law rights and the right to property but not the fundamental rights. The Bench did not fully agree with this, asking how a person’s data could be mere property.

Statutory protections are better suited
Moving to the arguments made by the Unique Identification Authority of India (UIDAI), the counsel argued that statutory protection to privacy was sufficient. Privacy, being subjective and varying from context to context, the legislature is better positioned to protect privacy. For example, the principles will be different for IT returns and different for health records.

Moreover, it was argued, many aspects of privacy are protected under the existing fundamental rights, and thus there is no need to elevate privacy as a fundamental right. An alternative argument was that every aspect of privacy was to be questioned separately as to whether it was a fundamental right.

Challenging a law invading privacy needs privacy as a fundamental right
An important discussion that ensued was on how a statute is to be challenged if a statute invades privacy. Under Indian laws, a law can be challenged in Court only if it violates fundamental rights. For this reason, the Bench pointed out that statutory or common law protection alone to privacy would prevent invasive laws from being challenged in Court.

The counsel pointed to the various privacy provisions in the Aadhaar Act, asserting that they are sufficient. To this, the Bench questioned what solution people had to protect their data’s privacy if the Aadhaar Act were to be repealed. This would result in a return to the pre-2016 position, when Aadhaar was started as an administrative and not legal move, with an entire database of people’s sensitive data, and not even the privacy protections granted under the Aadhaar Act itself.

The Bench also pointed out that if a data protection law is enacted, there can be no challenge to it on the grounds that the protection it gives is insufficient. This is possible only on recognition of a general, constitutional right to privacy.

SC: Fundamental rights need to be interpreted according to changing needs of time
One of the main arguments of the State was that a new fundamental right could not be created except by legislature, and the Court did not have the power to do so. This was particularly so because the makers of the Constitution had rejected the right to privacy as a fundamental right.

To this, the Supreme Court observed that fundamental rights need to be interpreted according to the changing needs of time. The Constitution cannot be interpreted like a statute, where the words are given utmost importance. Instead, it is the principles laid down in the Constitution that are upheld. This task, it was noted, lies with the courts, not the parliament.

Updated Date: Aug 02, 2017 16:24 PM

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