Update: SC Asks Constitutional Bench To Decide Whether Privacy Is A Fundamental Right

Posted on August 11, 2015 in Politics

By Abhishek Jha:

The Supreme Court yet again made it clear today that the Aadhar card will not be a mandatory requirement for availing any social benefit scheme, although it has allowed the government to link PDS and LPG with Aadhar. The SC was responding to a batch of petitions claiming that collecting and sharing of biometric information is a breach of the fundamental right to privacy. The case has garnered national attention, since Attorney General Mukul Rohatgi argued earlier this year that privacy is not a fundamental right. While the SC had questioned the AG’s submission last week, 5th August, 2015, it has now referred the matter to a constitution bench, as the government had wanted. The three member bench hearing the petitions has noted that an authoritative pronouncement is required as precedents don’t show a clear stand on the issue, a report said.

supreme court of india

The SC judgment is important not only in its relation to what Aadhar entails- namely mass collection of biometric data- but also in its relation to other matters where privacy is concerned. If the constitutional bench rules that privacy is a fundamental right, it is also going to be a great boost for those arguing against mass surveillance of innocent citizens. Globally, we have seen people equate the loss of privacy online with the loss of freedom and liberty itself. Thus, we have seen the likes of Jacob Appelbaum of the Tor project and whistleblower Edward Snowden argue against any such surveillance. In India, too, activists have denounced the use of CCTV surveillance as a measure for protecting women as it is an intrusion into their privacy. As the SC noted last week, “If a man is not safe in his own house, then what remains in Article 21 (right to life and liberty)? Where is liberty then? If privacy is not there in liberty, then what else can be there? To say that it (right to privacy) is not at all there will not be right. We will not accept it.”

To be sure, the SC had in 2014 prohibited the UIDAI from sharing the biometric database with any third party, even in the case of criminal investigation, without the card-holder’s consent. While we wait for the SC judgment, news reports indicate that the same has been reiterated even today. Thus, one can surmise that our judiciary does think of “personal liberty” guaranteed in Article 21 of the constitution as entwined with the right to privacy. The ruling of the constitutional bench in this regard, if unequivocal in its support of privacy, is going to be a victory for citizens’ power which finds itself often thwarted by governments.