SC verdict on privacy hailed: 'It now has same status as life and liberty'

Privacy is a fundamental right – that was the crux of the 500-page judgement delivered by a nine-judge Constitution Bench of the Supreme Court on Thursday, 24 August.

The bench trashed many of the arguments put forth by the State, and as Justice Jasti Chelameswar put it simply: “I don’t think anybody would like to be told by the State as to what they should eat, or how they should dress, or whom they should be associated with, either in their personal, social or political life.”

The bench overruled two past judgements – the MP Sharma judgement of 1954 and the Kharak Singh judgement of 1962, where the court had ruled that privacy was not a fundamental right.

As an aside, one of the judges on the bench, Justice DY Chandrachud, in fact, overruled his father YY Chandrachud's judgement in the famous ADM Jabalpur case.

Potential impact

This judgement may have considerable impact on several other cases, including Section 377, the Aadhaar Act, the proposed Human DNA Profiling Bill, and surrogacy laws (which prevent single mothers or same-sex couples from opting for surrogacy), watching porn, the three-finger test for ascertaining rape, et al.

That this basic right had to be sent to the apex court for validation had privacy rights activists up in arms. They claimed that the government had forced the Supreme Court's hand, in order to stall a bunch of Aadhaar-related cases pending with the court.

But sources in the UIDAI, the body in charge of Aadhaar, said while the verdict comprehensively looked at privacy, it had little to do with Aadhaar.

The bench tore into the earlier Supreme Court judgement upholding Section 377, which outlaws homosexuality and other acts considered 'unnatural'. It noted that rights of the lesbian, gay, bisexual and transgender community “cannot be construed as 'so-called' rights. The expression 'so-called' suggests the exercise of a liberty in the garb of a right which is illusory.” The bench said these are real rights founded on sound constitutional doctrine, they inhere in the right to life and dwell in privacy and dignity. “They constitute the essence of liberty and freedom.”

Rights activist Gautam Bhan said he was happy that the judgement didn't offer a narrow reading of privacy, even as at least one judge on the bench, Justice Chandrachud, talked of privacy along with equality and dignity. “For us, it a reaffirmation of the High Court judgement in the Naaz foundation case (regarding the repeal of Section 377),” he said.

Govt cuts a sorry figure

The government claimed it never contested that privacy was a fundamental right, and that the judgement affirmed its position. But its claims cut a sorry figure, as activists and others took out the part of the judgement where some of the absurd arguments put forth by the government, including how privacy was merely an “elitist construct”, were conclusively debunked by the bench.

Addressing the press, Union Law Minister Ravi Shankar Prasad seemed out of depth on several issues that could be affected by the judgement. He did not answer, for example, whether the judgement would affect Section 377.

Prasad, an accomplished senior advocate of the Supreme Court before he took over as cabinet minister, still had a rather strange answer to the question. “I think today is a very important day to talk about the poor, underprivileged and the right to privacy On that issue (377), we will revert to in some time in future,” he told the media.

Prasad was at pains to explain how the verdict was exactly what the government wanted. “We wish to say with profound respect that the essence of the judgement is a very wider affirmation of the crux of the argument (in a debate on Aadhaar Act) made by the finance minister on behalf of the government,” he said. “The government has consistently been of the view, particularly with regard to Aadhaar also, that the right to privacy should be a fundamental right,” he told the media, before coming in with his caveat on how “the court has said that the right to privacy is not an absolute right. It is subject to reasonable restrictions.”

Usha Ramanathan, a researcher who has been protesting Aadhaar on grounds that it violates privacy, said it was time to remind the cabinet minister what Attorney General KK Venugopal had told the court in an earlier hearing – that it should not elevate a common law (privacy) to a fundamental right since the founding fathers of the Constitution had considered it and still did not include it as a fundamental right.

Reetika Khera, associate professor at IIT Delhi, agreed. “The line the government took in court was deeply disappointing. In the 21st century, for the government of a democratic country to make such arguments, presumably to keep Aadhaar safe, is bewildering,” she said.

A high threshold

A government press release later in the day quoted from the judgement, while claiming that its legislations were compliant with the tests laid down in the judgement. It quoted portions where the judgement spoke of the requirement for a sensitive and careful balance between individual interests, and legitimate concerns of the State, including national security, preventing and investigating crime, and prevention of dissipation of social welfare benefits.

On the issue of 'reasonable restrictions', Ramanathan pointed out that all rights had them. She added that in the judgement, privacy has been accorded the same protection that are there for life and liberty in Article 21 of the Constitution. “It is a very high threshold,” she explained.

Prasad, meanwhile, was selective even about answering questions on Aadhaar. He did not comment about a question on the future of mandatory linkages of Aadhaar to non-welfare programmes, but he had other comments to make on the scheme. “We gave 32 crore SIM cards through Aadhaar. Think how much paper was saved. How much conservation we did.” He added how linking Aadhaar to bank accounts and the government's direct cash transfer scheme had saved Rs 57,000 crore, and that Aadhaar was praised as a “homegrown technological marvel”.

He also explained how the BJP brought in a strong law to govern Aadhaar, unlike the Congress which started the programme in 2009 without any legislation.

Ramanathan countered the assertions, saying the figures given by the minister meant nothing.

A diversionary tactic

The judgement, meanwhile, entails that Aadhaar-related cases will come up for hearing.

Khera said more than 20 different petitions challenging Aadhaar on various grounds, including privacy, would have to be heard now. She explained how these has been pending since 2013, even as the number of petitions multiplied.

She pointed out how in 2015, the then-Attorney General, Mukul Rohatgi, “after seeing how the government was getting cornered because it was not able to find answers to questions, by way of court craft, tried to convince the court that in the Kharak Singh and MP Sharma cases, it had rejected the right to privacy, so all subsequent judgements upholding it were questionable”, unless the court itself constituted a nine-judge bench to study it.

“It was a diversionary tactic, because forming a nine-judge bench is no joke. It was a stalling tactic, which was successful, because it took about two years to decide the case,” she said.

Ramanathan agreed: “It was an unnecessary case, but the court did what it should do.”

How Aadhaar affects privacy

Privacy is just one of the aspects for which Aadhaar has come under criticism. Exclusion is another aspect, especially after it was made mandatory for availing government subsidies. However, the UIDAI has claimed the problem was one of implementation by the states, not the programme per se.

Khera explained that when the hearings resume, the petitioners will have to convince the court how Aadhaar violates privacy.

“One, there is informational privacy – that they are taking more information than what is necessary, and the purpose of collection is not clear.

“Two, bodily integrity – that you are asking the whole population to submit its biometrics to the state. The history of biometrics goes back to crime. That is where it originated.

“Three, the important civil liberties aspect – how Aadhaar is creating a panopticon, an informational structure which is able to create a full profile of my life. The fact that this kind of profiling is possible has the effect of self-censorship, constraining my freedom, which will affect my freedom of expression, my ability to think freely,” she explained.

But for those protesting compulsory Aadhaar, this verdict is just a beginning. It is a long, winding road ahead.