‘Privacy argument will hit governance’

Highlighting the need for a comprehensive law on data protection, the Unique Identification Authority of India (UIDAI) informed a nine-judge Bench of the Supreme Court on Tuesday that the Centre has constituted a committee of experts, led by former Supreme Court judge, Justice B.N. Srikrishna, to identify “key data protection issues” and suggest a draft data protection Bill.

Appearing before the Bench led by Chief Justice of India J.S. Khehar hearing the question whether privacy is a fundamental right, UIDAI, the nodal agency for implementation of Aadhaar, said privacy is not a fundamental right; privacy is subjective and dependent on human behaviour. Any attempt by the court to robe it in the status of a fundamental right would damage the nation and stymie the government's efforts for good governance.

Overarching principles

Instead, Additional Solicitor General Tushar Mehta pointed out that the government's focus is now on framing overarching principles for data protection. He said the Justice Srikrishna Committee was constituted on July 31, 2017.

“The government is cognisant of the growing importance of data protection in India. The need to ensure growth of the digital economy while keeping personal data of citizens secure and protected is of utmost importance,” Mr. Mehta read out from the Office Memorandum appointing the Justice Srikrishna panel.

The Ministry of Electronics and Information Technology will work with the panel and hand over all necessary information to it within the next eight weeks, after which the latter will start its deliberations. The Committee is expected to submit its report expeditiously.

Mr. Mehta said the government expects to frame a data protection Bill similar to the "technology-neutral" draft Privacy Bill submitted by an earlier expert committee led by former Delhi High Court Chief Justice A.P. Shah to the Planning Commission of India in 2012. No steps were taken on the Justice Shah Committee recommendations.

No guarantee for citizens

Underlining the need for overarching data protection laws, Jutice D.Y. Chandrachud observed that citizens should have the guarantee that personal data collected from them would be used only for the specified purpose and no other.

Justice Rohinton F. Nariman, one of the judges of the Bench, intervened at this point to ask the government lawyers: “When a person gives his mobile number or other personal details, he is under the reasonable expectation that the information would be used only for a specified purpose. Is a violation of that reasonable expectation a violation of his fundamental right?”

Mr. Mehta submitted that the court cannot thrust a new fundamental right like privacy into the Constitution. This would require legislative deliberations. He also advised the court against expanding the existing fundamental rights to interpret and include right to privacy.

For progressive laws

Justice Nariman replied that laws should reflect the “felt needs of the times” and protect the citizens from violations by the State and non-State players. He said it was the duty of the court, and not the legislature, to interpret the law. He pointed out that privacy can indeed be read into the Constitution as a fundamental right as India is part of the United National Declaration of Human Rights of 1948, which declares privacy as an inalienable human right.

But Mr. Mehta, pointing to the prolonged Aadhaar litigation in court, submitted that “if ever privacy is made a fundamental right, all-out attempts would be made to stay government's efforts at good governance”.

“What is so great about my fingerprints? I touch a file, I leave my fingerprints. These are all perceived ideas of privacy. We should aim to use technology to the maximum for the betterment of human beings. Aadhaar has 115.15 crore people enrolled, that is 98% of the population. The Aadhaar statute will take care of privacy violations. Do not elevate privacy to a fundamental right,” Mr. Mehta submitted.