The right to privacy is an element of various legal traditions to restrain government and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy.
The Supreme Court ruled that privacy is a fundamental right because it is intrinsic to the right to life.
“Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution,” the SC’s nine-judge bench ruled unanimously.
It added that the right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
This judgement is a blow to Aadhaar as the Centre now has to convince SC that forcing citizens to give a sample of their fingerprints and their iris scan does not violate privacy.
The SC bench’s judgment will touch the lives of 134 crore Indians. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable fundamental rights. What this means is a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.
The apex court’s nine-judge bench overruled previous judgments on the issue- an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case, both of which had ruled that privacy is not a fundamental right . The bench comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer.
Attorney general K K Venugopal, who had argued that right to privacy cannot be a fundamental right, welcomed the SC decision.
In a landmark verdict, the Supreme Court said that privacy is a constitutional right. Nine judges were unanimous in their finding, though they cited different reasons for their conclusion. The verdict on the right to privacy today is a major setback for the government, which had argued that the constitution does not guarantee individual privacy as an inalienable fundamental right. The judges concluded today, “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.
The right to privacy “is protected as an intrinsic part of Article 21 that protects life and liberty,” the Supreme Court ruled. The government insisted it had not lost its case. Law Minister Ravi Shankar Prasad claimed that judges have agreed that “privacy as a fundamental right is subject to reasonable restrictions.”
The Supreme Court order is based on an array of petitions that have challenged the mandatory use of Aadhaar cards which assign a unique 12-digit ID to every citizen. The Aadhaar database links iris scans and fingerprints to more than a billion people.
Today’s verdict does not comment on whether the government’s demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. The opposition led by the Congress said that the government’s intent of “suppression through surveillance” has been defeated by the Supreme Court.
Whether Aadhaar can be made mandatory as the government insists for all financial transactions and for benefits of welfare schemes will be decided by a separate and smaller bench of the Supreme Court. But experts said that today’s ruling could prompt the government to tweak its arguments in that case.
The Supreme Court dismantled key claims made by the government, stating, “The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights”. It added, “The poor (the Attorney General) talks about today have cell phones, and would come forward to press the fundamental right of privacy.”
All fundamental rights come with reasonable restrictions, said noted lawyer Prashant Bhushan. Whether Aadhaar can be seen as a reasonable restriction has yet to be decided, he cautioned.
In May, then Attorney General Mukul Rohatgi rejected suggestions that Indians could refuse to provide their iris scans or fingerprints to the government, telling a court “the concept of absolute right over one’s body was a myth”.
The petitioners had stressed that the Aadhaar database was originally presented as a purely voluntary programme that offered to provide every Indian with an identity card.
The government says Aadhaar is essential for all services including tax returns, opening bank accounts and securing loans, pensions and cash transfers for those entitled to welfare schemes. It has rejected suggestions that the Aadhaar programme, set up in 2009 by the previous Congress-led government, poses a threat to civil liberties.
Critics say the Aadhaar identity card links enough data to allow profiling because it creates a comprehensive profile of a person’s spending habits, their friends and acquaintances, the property they own, and a trove of other information.
There are fears the data could be misused by a government that argues Indians have no right to privacy. There have been recurring reports of Aadhaar details being accidentally released, including on government websites. UIDAI, the agency that governs Aadhaar, has repeatedly said that its data is secure. The verdict has asked the government to ensure a “robust regime for data protection” that would deliver “a careful and sensitive balance between individual interests and legitimate concerns of the state.”
