1. Aadhaar Case: Is privacy a Fundamental Right? Here’s what Supreme Court had ruled before

Aadhaar Case: Is privacy a Fundamental Right? Here’s what Supreme Court had ruled before

Aadhaar case: The Supreme Court of India has set up a nine-judge bench to decide if the contentious issue of the right to privacy is a fundamental right under the Constitution

By: | New Delhi | Updated: July 19, 2017 5:09 PM
right to privacy , right to privacy supreme court, aadhaar case, fundamental right to privacy, right to privacy case Supreme Court of India. (PTI file)

Aadhaar case: The Supreme Court of India has set up a nine-judge bench to decide if the much-debated issue of the right to privacy is a fundamental right under the Constitution. The new bench was set up on Tuesday by the five-judge bench which had to look into the validity of Aadhaar case and the right to privacy attached to the case. The SC is now faced with two judgements of 1954 and 1962 which had said that the right to privacy was not a fundamental right.

“During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution,” the SC said on Tuesday, adding, “The determination of this question will essentially entail whether the decision recorded by this court in M P Sharma and Ors vs. Satish Chandra, District Magistrate, Delhi and Ors. (of 1950) by an eight-judge Constitution bench, and also, in Kharak Singh vs. the State of UP and Ors. (of 1962) by a six-judge Constitution bench, that there is no such fundamental right, is the correct expression of the constitutional position,” it added.

While the nine-judge bench would look into the limited matter of right to privacy, the case challenging Aadhaar would be referred back to a smaller bench latter. Here we take a look at what the SC had said in the past two cases about right to privacy (source: indiankanoon.org):

MP Sharma and Ors vs. Satish Chandra, District Magistrate, Delhi, and Ors. (1954)

The case related to search and seizure of documents of some Dalmia group companies following a probe into affairs of Ms Dalmia Jain Airways Ltd, a group concern, which was registered in July 1946 but liquidated in June 1952. The probe hinted at malpractices within the company and also indications that attempts were made to conceal from shareholders the actual state of affairs by submitting false accounts and balance sheets. Police registered a FIR was on November 19, 1953, and a request was made to the District Magistrate, Delhi, for search warrants.

The DM issued the warrants, and searches were carried out at 34 places belonging to the group.

In their writ petitions under article 32 before the Supreme Court, the aggrieved parties challenged the constitutional validity of the searches saying their private records were taken away. They also claimed that the searches violated their fundamental rights under Articles 19(1)(f) — right to acquire, hold and dispose of property — and 20(3) — protection against self-incrimination.

However, the court observed, “A search and seizure is, therefore, only a temporary interference with the right to hold the premises searched and the articles seized. Statutory regulation in this behalf is necessary and reasonable restriction cannot per se be considered to be unconstitutional. The damage, if any caused by such temporary interference if found to be in excess of legal authority is a matter for redress in other proceedings.”

The court further said, “fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right.”

Kharak Singh vs. the State of UP and Ors. (of 1962)

The case was about a petitioner, who was earlier released due to lack of evidence against him in a dacoity case. The police later opened a “history sheet” against him and also put him on a surveillance. The aggrieved petitioner approached the apex court claiming infringement of his fundamental rights. In his writ petition,  Singh claimed the surviellance violated his fundamental rights under Articles 19(1)(d) — right to freedom of movement — and 21 — protection of life and personal liberty.

Howeevr, the top court observed, “The right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

  1. R
    RDayal
    Jul 25, 2017 at 9:43 pm
    Justice Rohinton Nariman's view that Privacy is not Absolute says it all.If it was absolute then we do not need governing bodies.To govern and to provide citizens their fundamental rights the Cons ution has "Fundamental" duties too . Further "privacy" would include the portfolios of government which have evolved with time. Aadhaar, the protection should be as of a Passport under the Passport Act. The government will be liable for any breach and the citizen will not be held responsible. At present there are umpteem cases in which government does the monitoring of parties and is impleaded for the decisions and acts enforced under the pretext of law. Privacy cannot be absolute in a society. Disciplines are restrictive customary law . Privacy is not Absolute directs the arguing counsels to classify "privacy" and categorise which are absolute and which cannot be absolute. If made absolute it might lead to misleading the public and misuse of power by governing bodies unde
    Reply
    1. Hemen Parekh
      Jul 22, 2017 at 6:21 pm
      s: myblogepage. /2017/07/privacy-does-not-live-here
      Reply
      1. Annu Chopra
        Jul 20, 2017 at 7:08 am
        INDIA imported democracy from western countries and america. Why don't we use same norms for privacy? Any personal info required for UNIQUE POSITIVE IDENTIFICATION of a person cannot be deemed to be private. Those crying over privacy , give all personal details even boils in the asss , for getting US visa.
        Reply

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