“In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy,” the Supreme Court observed on Tuesday, putting a question mark on the government’s apparent effort to make the unique identification number Aadhaar a must for access to assorted state-sponsored doles and services as well as for taxation and other aspects of regulatory governance.
A five-bench Constitution bench headed by Chief Justice JS Khehar set up a nine-judge bench to decide whether right to privacy can be declared as a fundamental right under the Indian Constitution.
The larger bench headed by the CJI will assemble for a day on Wednesday to decide the limited question before proceeding further with the other Aadhaar cases. It would examine the correctness of the two earlier judgements.
The two earlier judgments were delivered by six-judge and eight-judge benches in the cases of Kharak Singh and MP Sharma, respectively, in which it was held that right to privacy was not a fundamental right. Smaller benches of two and three judges after these two rulings had consistently maintained that privacy is a fundamental right.
The regular bench hearing the Aadhaar cases will subsequently decide every challenge to scheme in due course on a case-to-case basis, the apex court said.
On June 9, the court upheld the validity of a recently inserted Income Tax Act provision making Aadhaar mandatory to apply for PAN cards and file tax returns. Even as the court upheld Parliament’s legislative competence to enact the relevant Section 139AA of the I-T Act — which was inserted through the Finance Act, 2017 — it allowed those who do not have the unique ID to file their income tax returns till the larger issue of right to privacy and concerns that the Aadhaar scheme affected the human dignity are decided by a Constitution bench.
“There is a battery of judgments saying privacy is a fundamental right, we cannot ignore them. We have to give serious thought to this question,” justice J Chelameswar, who was a part of the five-member bench, observed.
Citing the binding nature of past precedents, attorney general KK Venugopal reiterated his predecessor Mukul Rohatgi’s stand that right to privacy is not a fundamental right under Article 21 and Article 19 (1)(d) of the Constitution, but submitted that it is a “common law right”. He submitted that even as the founding fathers of the Constitution gave its citizens all kinds of fundamental rights, the right to privacy was “consciously avoided”. Senior advocate Gopal Subramanium, appearing for one of the petitioners, however, submitted that categorising privacy as a common law right was “quite depressing”. He pointed out that privacy is an “inalienable human right” as said in the United Nations Human Rights Declaration.
Speaking to FE, member of Parliament and former additional solicitor general Vivek Tankha said that apart from addressing the issue of privacy, the SC will also have to take into the account how the government has gone ahead in expanding the whole Aadhaar scheme when it had got “limited relief” from the court. “The larger issue before the SC is whether the government should have gone ahead with its various schemes. There is conflict and the government will have to clarify its actions… It may not be that the government has directly violated the orders, but has definitely gone against the spirit of the SC decisions,” Tankha said.
However, supporting the government’s stand, former solicitor general and senior advocate Mohan Parasaran said that nobody can claim “unchartered privacy”. “It is up to the government to bring in any scheme for larger good — public order, decency, morality and national security. Besides, Aadhaar has been the policy decision of two successive governments. The SC can’t question the wisdom of the two governments who have bought proper legislations on the issue,” he said. Parasaran further added that a small minority that doesn’t want to part with its biometric details can’t frustrate the well-planned scheme, which has been already accepted by the majority of the population. However, he said that it is the government’s obligation to ensure that such personal details are not leaked, otherwise it will be liable to damages.
The court was hearing a batch of 22 petitions alleging that the Aadhaar scheme, which requires the mandatory parting of biometric details like iris scans and fingerprints, is a violation of citizens’ right to privacy.
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A bench led by the CJI had on March 27 made it clear that Aadhaar cannot be made mandatory by the government for extending benefits of social welfare schemes but can be enforced for “non-benefit” purposes like filing of I-T returns and opening of accounts. The five-judge Constitution bench had on October 15, 2015, extended use of the Aadhaar card on voluntary basis to avail other government schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme, Pradhan Mantri Jan Dhan Yojana, employee provident fund and pension schemes. The social welfare schemes, aimed at reaching the doorsteps of the “poorest of the poor”, were in addition to the other two schemes — public distribution system and LPG schemes — allowed earlier by the apex court in its August 11, 2015, interim order.