In a verdict with far-reaching implications for the rights of Indian citizens, the Supreme Court declared that privacy is a fundamental right. A nine-judge bench of the apex court delivered a unanimous verdict on Thursday morning.
The court said that privacy is intrinsic under Article 21 and other freedoms guaranteed under Part III of the Constitution, and overruled the earlier position in the MP Sharma and Kharak Singh cases.
The question of whether privacy should be a fundamental right was referred to the nine-judge bench by a five-judge Constitutional bench, which is hearing objections to the Aadhaar unique identification project. The question before the Constitutional Bench is whether the methods of collecting and storing biometric and demographic data for Aadhaar violate the privacy rights of citizens.
Before this question can be resolved, however, it was necessary to decide if and what kind of privacy rights citizens possessed.
The broader question was raised before the larger bench because the government had earlier relied on judgements by an eight-judge bench in 1954 and a six-judge bench in 1962, which stated that there was no fundamental right to privacy under the Indian Constitution.
Though there have been many subsequent judgements that have read the right to privacy into the fundamental rights, the government had argued that the two original judgements by larger benches held precedence. So, a nine-judge bench was assembled in order to provide a verdict that would supercede all earlier judgements.
In six days of hearings over the course of three weeks starting from July 19, the apex court heard a battery of lawyers representing individual petitioners, state governments, the UIDAI (the authority behind the Aadhaar project) and the Central government. These included Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subramaniam, Shyam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi.
Arguments against declaring privacy a fundamental right
Declaring its determination to see Aadhaar applied as an identification mechanism for all public services, the government maintained that it was required to weed out evils like corruption, money laundering and tax evasion and terror funding. It also said that Aadhaar was necessary for protecting the right to life of India’s poor by providing access to a host of benefits and services provided by the government.
Pitting this argument against what he called the privacy concerns of a small elite, Attorney General KK Venugopal argued on behalf of the government that the needs of the many should not be outweighed by the concerns of the few. "Don't apply US judgement to privacy. India has people below poverty line and the middle class...So that needs to be considered," the AG said.
The government also argued that since the Constituent Assembly had debated the right to privacy and had deliberately chosen to exclude it from the fundamental rights, the court could not now introduce a new right. Appearing for the BJP-led government of Maharashtra, advocate Aryama Sundaram argued that if a new right had to be introduced, this was the task of Parliament and not the courts.
Another major argument raised by Venugopal was that privacy was an amorphous and multi-faceted concept. The rights of citizens in relation to each of these facets has to be decided on a case-by-case basis, as every facet cannot become a fundamental right, argued Venugopal, and hence it would be unwise for the court to declare an omnibus right of privacy as fundamental.
Appearing for the UIDAI and the state of Madhya Pradesh, Additional Solicitor General Tushar Mehta dismissed fears that Aadhaar could be used by the government for excessive surveillance of citizens. Mehta argued that both technical safeguards and legal restrictions built into Aadhaar prevented such surveillance. He also argued that, “Nothing is private in the online era,” and said that privacy concerns were being blown out of proportion.
Arguments for privacy as a fundamental right
Senior advocate Gopal Subramanium had kicked off the arguments in the case by saying that privacy is an inalienable component of the various freedoms secured by the Constitution. “All human choices are an exercise of liberty. And they all presuppose privacy”, he argued.
Taking the example of the freedom of speech encoded in Article 19, Subramanium argued that before citizens could freely express their thoughts, they required a private, internal space in which to develop the thought. All freedoms enshrined in the Constitution would be denuded of their value if privacy was not provided for, he argued.
On the argument that privacy did not appear in the text of Constitution, Soli Sorabjee argued that a right could not be denied to exist because it was not explicitly mentioned in the Constitution. The freedom of press, for instance, is not explicitly present either, but can be deduced from the freedom of speech, he argued.
Referring to Aadhaar and biometric data specifically, Shyam Divan argued that citizen’s could only be deprived of the rights over their bodies in a totalitarian state. He also argued that there were decades of jurisprudence upholding the right to privacy, and urged the court to not undo this long history.
Sajan Poovayya took on the argument of privacy disappearing in the online era by pointing out that secrecy was not a pre-requisite for privacy. He argued that even if people disclosed information to certain agencies for a specific purpose, they could still expect the privacy of that information to be upheld and not be freely shared.
“For example, those who disclose certain personal details to banks need not presume that the same will be disclosed by banks to other persons for other purposes," he said.
The counsels for the petitioners also argued that privacy was a wide-ranging right, drawing from many of the fundamental rights enshrined into the Constitution. Hence the right to privacy should not be defined narrowly, as this risks prejudicing some aspects of the right in advance.