The Ongoing Debate on Right To Privacy

Published on 10 Aug 2017 by Team

We all are aware of the ongoing Aadhar-card project which requires a person to give personal information, which includes fingerprints, retinal scans, and is linked to gas connections, bank accounts, PAN, phone numbers. In recent months, the debate over Aadhaar has reached a feverish pitch.

Opposition perspective

In their challenge to the Aadhar project, the critics have argued that large-scale collection of biometric data without foolproof security arrangements could result in breaches of confidentiality. They have argued that by “forcing” citizens to part with personal data without any legislative backing for the Aadhar project, the government is infringing upon their right to privacy.

Government's stand

The government, however, has taken the stand that the right to privacy, is neither guaranteed under the Constitution nor made available to citizens through a settled judicial pronouncement.

Current Status

On 2nd April,  a nine-judge bench of the Supreme Court reserved judgment on the issue of whether there exists a fundamental right to privacy under the Indian Constitution.

How then did this case come before a nine-judge bench?

On August 11, 2015, while constitutional challenges to the Aadhaar scheme were being made before a three-judge bench, the Union of India argued that the main ground of challenge the right to privacy could not be raised, because the Indian Constitution did not guarantee a fundamental right to privacy.  The Union of India relied upon two early judgments- M.P. Sharma vs Satish Chandra (1954, 8 judges) and Kharak Singh vs State of UP (1962, 6 judges), which contained observations suggesting that there may not be a fundamental right to privacy. It was in response to this contention that the Court passed an order referring the case to a higher bench.

M.P. Sharma and Kharak Singh an eight-judge bench of the Supreme Court observed that

"When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

In Govind vs State of Madhya Pradesh (1975), the Supreme Court ruled that “…many of the fundamental rights of citizens can be described as contributing to the right to privacy”. The Bench, however, clarified that the right to privacy was not an absolute right. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, the fundamental right must be subject to the restriction on the basis of compelling public interest,” it said.

Note-  This is the only judgment which had ruled that there is a fundamental right to privacy. The government, however, argued that it was decided by smaller benches, and is therefore not good law.

In Maneka Gandhi vs Union of India (1978), the SC, while talking about a “Triple Test for any law interfering with personal liberty”, held: “The law and procedure authorising interference with personal liberty and right of privacy must also be right, just, and fair, and not arbitrary, fanciful, or oppressive.”

What is at stake?

Nine-judge benches are rare sightings, and whatever the Court decides, its decision is bound to hold the field for a few generations to come. The ongoing debate is extremely crucial as it directly affects our everyday lives and will set the future legal foundation for how we interact with the state in the digital world.

The Supreme Court’s job is twofold: Firstly to determine whether Indians enjoy constitutional or fundamental right to privacy. And secondly, if it does, what is its contours.

The nine-judge bench is yet to make a decision on the fundamental right to privacy and its contours. Once that is decided, the original five-judge bench will decide whether Aadhaar violates the privacy of Indians. 

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