Though two Constitution benches have, in the past, ruled that the right to privacy is not a fundamental right, it was always odd that the government continued with this line of argument at the Supreme Court, going to the extent of saying that citizens did not have an absolute right to their bodies either.
Though two Constitution benches have, in the past, ruled that the right to privacy is not a fundamental right, it was always odd that the government continued with this line of argument at the Supreme Court, going to the extent of saying that citizens did not have an absolute right to their bodies either. The argument is correct in that suicide was treated as a crime until very recently and pregnancies cannot be terminated after a certain number of weeks. But, in this day and age, when privacy concerns have taken centre-stage the world over, and even the SC has been nuancing its views on this, the argument never sounded quite kosher. Which is why, it is good to see that, under a new Attorney General, the government has nuanced its views and tried to also focus on the need to protect data of private citizens.
While not conceding that privacy was a fundamental right, Attorney General KK Venugopal argued that while the right to privacy was a common law right, some aspects of it could get fundamental rights protection on a case-by-case basis—CCTVs in public places, to explain Venugopal’s point, cannot be banned on grounds they are a violation of the right to privacy, but the same must certainly be done for CCTVs being installed by the state in a person’s home. As he put it, “there is a fundamental right to privacy, but this is a wholly qualified right”. Citing Article 21 that protects life and personal liberty, he argued that in this case too, the Constitution allowed for them to be taken away when it said “except according to procedure established by law”.
This stance has been furthered by the government arguing that privacy and confidentiality of information gathered are non-negotiable under the Aadhaar Act. That is, while the government is within its right to collect biometrics and other personal data under Aadhaar, the information collected is to be protected under Chapter VI of the Aadhaar Act—that, presumably, has to be the concern of privacy activists. While the government did not agree with Justice Nariman’s question as to whether the Aadhaar Act’s protection of information was in fact “legislative recognition of privacy as a fundamental right”, it would do well to also tell the court that Aadhaar does not in any case have the data that many think it has.
So, when a financial transaction is done using Aadhaar, the transaction details reside with the bank, not with Aadhaar—and disclosing the transaction details violates various banking laws; the Aadhaar Act, in any case, makes disclosing of any personal details collected a cognizable offence.