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27
July 2017
 |
Supreme Court (The Total Investment & Insurance
Solutions)
The
government on Thursday apparently tied itself in the issue whether right to
privacy is a fundamental right or no in India. Attorney-General KK
Venugopal, jumping into the discussion with the claim that protecting privacy
through a legislative Act meant that there was no fundamental right to privacy.
He reiterated that if there was a fundamental right to privacy it could not be
claimed in relation to Aadhaar.
On Thursday,
arguing for the Union, the Attorney-General began with reading out US Supreme Court
decisions arguing that "informational privacy" can never be a
fundamental right.
In the
discussion, Justice DY Chandrachud countered this position saying America
lagged behind Europe in protecting informational privacy. In response, the
Attorney General reiterated that the right to privacy could not be determined
without taking into account cultural and environmental norms, which he held the
US courts had done, and that India should not imitate foreign jurisprudence.
Justice
Chandrachud expressed the need to determine what kind of data gets protection
under privacy laws, which in turn brought up the question of balancing
compelling state interest and legitimate state interest. To the AG's subsequent
argument for the consideration of legitimate state interest (with which Justice
Chandrachud and Justice Rohinton Fali Nariman did not agree), Justice
Chandrachud underlined the need for robust data security mechanisms. The Total Investment & Insurance
Solutions
The
nine-Judge Constitution Bench on Thursday continued hearing the arguments of the
Government of India to settle the question of whether there exists a
fundamental right to privacy in India.
Subsequently,
Additional Solicitor-General (ASG) Tushar Mehta read out provisions from the
Aadhaar Act 2016, dealing with information sharing. The Total Investment & Insurance Solutions
Justice
Nariman asked if the discussion on privacy interests in the Aadhaar Act
suggested a legal recognition of privacy. Choosing not to answer that directly,
the ASG sought to assure the court that the Act protected both privacy and
data. The Total Investment &
Insurance Solutions
In conclusion,
AG VEnugopal revisited the two cases at the heart of the Constitution Bench
hearing - MP Sharma and Kharak Singh- and emphasised that the majority views in
these should be upheld.
Senior
Advocate CA Sundaram then argued for Maharashtra, claiming that privacy could
not be unambiguously defined and could only be protected insofar as the impact
on other fundamental rights.
Justices
Sharad Bobde, Chief Justice JS Khehar, and Justice Chandrachud retorted that
even life and dignity could not unambiguously denied. Continuing after lunch,
Mr Sundaram claimed that the framers of the Constitution had only included
exact rights as fundamental rights. He argued for testing privacy against other
Fundamental Rights and said it was not a fundamental right per se.
Sparring
with the Judges, Mr Sundaram sought to show how Kharak Singh as well as various
subsequent judgments in India and the US primarily dealt with other fundamental
rights rather than privacy, and that zones of privacy were created by specific
guarantees. The Total Investment
& Insurance Solutions
Justice
Nariman countered that seeing privacy solely in the context of liberty was
difficult, but agreed to the later point that if privacy was recognized as a
fundamental right, its extent would have to be defined.
On the same
day, Right to Food campaign issued a strongly worded statement stating that the
Campaign was "shocked and dismayed" that Government had claimed in
court a day earlier that even if Aadhaar infringed on privacy, it was doing to
so to protect Right to Food and Right to life.
The Right to
Food campaign stated that government data shows lakhs of low income households,
pensioners are not able to access their food rations because of errors in
Aadhaar seeding, network failures, and biometric failures. The Campaign opposes
the use of Aadhaar in ration, mid day meals, and other nutrition schemes.
Aadhaar does not protect or enhance the Right to Food and the Right to Life in
fact it deepens the difficulty faced by the poor in accessing these fundamental
rights.
In August
2015, the Government had denied that a fundamental right to privacy exists in
India in the ongoing Aadhaar case. After the nine-judge bench finishes hearings
on the limited question of whether Indians have a fundamental right to privacy,
a five-judge bench is then expected to rule on whether the Aadhaar scheme
violates such a fundamental right and will thereby decide the fate of the
Aadhaar project.The Total Investment
& Insurance Solutions
