Aadhaar Debate: Right to privacy not absolute, says SC

19 Jul 2017 | Written by Gogona Saikia; Edited by Vaneet Randhawa

While hearing petitions on whether privacy is a fundamental right under the Indian Constitution, a nine-judge Supreme Court bench observed 'right to privacy' was not absolute.

Justice J Chandrachud said, "Every right to make a decision may not be a part of the right to privacy."

The SC's decision is pivotal to the petitions challenging the government's move to make Aadhaar mandatory for all.

In context: Clarity on whether privacy is a fundamental right

19 Jul 2017Aadhaar Debate: Right to privacy not absolute, says SC

LawWhat does the right to privacy mean in India?

It is noteworthy that the Indian Constitution doesn't identify the right to privacy as a fundamental right of citizens.

The said right is a corollary of Articles 19 and 21, which deal with the rights to life and liberty.

Several cases in the past have upheld it as a fundamental right, while others haven't.

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The Centre and SC on opposite ends of the line

ArgumentsThe Centre and SC on opposite ends of the line

In 1954 and 1962, two benches denied privacy as a fundamental right. Attorney General KK Venugopal cited them to support the Centre's stand against privacy in the case, saying it was "consciously…omitted" from the constitution.

However, Justice J Chelameswar said even freedom of press wasn't constitutionally defined.

"One can't overlook the constant view held by smaller benches holding privacy as a fundamental right."

Cases which upheld right to privacy

After the two rulings against privacy in 1954 and 1962, several small benches had consistently held that privacy is a fundamental right of citizens. Indeed, the SC has even expanded the scope of right to life to include right to clean air and sleep.

ArgumentsArguments by petitioners for right to privacy

Activist Ancilla says, "India has a population of 1.34bn. If they lose their basic right to privacy, it will be a huge setback for the world."

Petitioner Shyam Divan argued invasions of bodily integrity can only be allowed under a totalitarian regime.

In the absence of right to privacy in the digital age, any statute can be passed and citizens left helpless, he added.

'Aadhaar Bill presupposes privacy is fundamental right', Jaitley had said

Petitioners also forwarded a statement by FinMin Arun Jaitley, which he made while moving the Aadhaar Bill in Parliament. He had said, "The based on the premise (that privacy is a right). It's too late to contest that privacy is not a fundamental right."
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ConsMore arguments against Aadhaar: Breaches privacy, compromises personal data

The Aadhaar authorities had collected personal biometric data of individuals through various centres, without any law backing it.

Moreover, UIDAI had used many private parties to collect the data which led to the potential of it being misused.

Further, the information could be leaked or used for unintended purposes such as snooping, as there is no law guaranteed by the government to safeguard it.