There is no fundamental right to privacy, the Government of India represented by attorney general Mukul Rohatgi repeatedly told the three judge bench of the Supreme Court of India. The bench comprised Justices Bobde, Chelameswar and Nagappan yesterday. The court is hearing a case challenging Aadhaar, the unique identity project, on the grounds of right to privacy. The hearings on the issue whether or not there is a fundamental right to privacy in India have been ongoing for a while, and yesterday, Gopal Subramaniam, appearing for one of the petitioners, finished his arguments, saying that there was such a right in the constitution. The Attorney General was responding to these arguments.

Non-Mandatory Aadhaar made mandatory

At the beginning of the proceedings, Gopal Subramaniam, appearing for one of the petitioners, pointed out instances of people who have been denied their rights for the absence of an Aadhaar number, thereby indicating that the Aadhaar card was being deemed mandatory, in violation of the bench saying that the Aadhaar number is not mandatory, and that “No person should be denied any benefits or ‘suffer’ for not having the Aadhaar cards issued by Unique Identification Authority of India”. More on that here.

The petitioners shared affidavits of instances where citizens had been denied their rights: among them, an instance of a non-processing of a scholarship for a poor person, another of an individual denied a voters identity card for the lack of an Aadhaar card, and another of bank accounts not being allowed without Aadhaar. (Also read: How to get married without an Aadhaar number)

Subramaniam also cited a June 2015 document focused on seeding Aadhaar, which points out that the purpose of Aadhaar is to ensure that all of the information being collected is available across databases in a central repositoriy, indicating that the state will have access not just to the information being collected by it for the purpose of validating identity, but also to all the linked information present in databases. Reading from the document, the Subramaniam indicated how the government saw the NREGS as one of the best ways of seeding the Aadhaar database. Another point he highlighted was the fact that the document states that the owner of the data is the UIDAI, and not the person whose data is being collected. This suggests that the UIDAI has the liberty to use the data for commercial purposes.

Government focuses on getting the case shifted

The government of India, however, steered clear of the alleged contempt of court, and focused its remarks on trying to get this case referred to a seven judge bench of the Supreme Court, saying that past judgments have indicated that there is no fundamental right to privacy, and any ruling to the contrary needs to be from a Supreme Court bench of greater numbers than the three judge bench by which this case is currently being heard by. “Your lordships will have to determine the contours of privacy. Going by these judgments, if the contours of privacy are not clear, then it should be decided by a larger bench,” Rohatgi said.

Rohatgi relied upon a judgment of 1964 (Kharak Singh) which he said has been wrongly interpreted for 40 years, as saying that there was no Fundamental Right of privacy. Later benches of smaller strengths could not have ignored this finding. Kharak Singh dealt with domiciliary visits and surveillance under the UP Police manual.

Justice Chelameswar, later in the day, said that “Just to say that there is no right to privacy is not something I will accept. The aspect of this case is that you’re taking personal data and this is different from entering someone’s home. This is more than the home.”

Later in his submissions, Rohatgi proposed that “The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty. Rohatgi relied on the fact that surveillance of individuals is not prevented under constitution, but Justice Bobde responded, saying that “Keeping a watch on someone is a manner of breaching privacy, in terms, that all these manners of breach of privacy is not an invasion of a fundamental right. This is not to say that privacy is not a fundamental right. Unless privacy was a part of liberty, it would have been struck down.”

In response to Rohatgi’s statement that the “Violation of privacy doesn’t mean anything because privacy is not a guaranteed right”, Justice Bobde said that privacy is “a part of liberty. Privacy telescopes to liberty and the breach of privacy leads to a violation of liberty which is protected under Article 21 of the Constitution.”

The government argued that no telescoping of rights is allowed because privacy is not a fundamental right. The exchange that followed:

Justice Bobde: “Then you don’t agree, fundamentally, that privacy is a part of liberty?”

Rohatgi: That is correct.

Bobde: If privacy was a part of liberty then would you agree that it is a fundamental right?

Rohatgi: Yes.

Bobde: So privacy has no fundamental status?

Rohatgi: Yes.

Image Credit: Flickr user Scott Sterbenz