Great Expectations

BY Editorial24 Aug 2017 3:53 PM GMT

On Thursday, the Supreme Court of India took yet another giant leap to ensure security of common citizens. The acknowledgement of the right to privacy as a Constitutional endowment comes for many as a reason to rejoice. The ruling on the highly contentious issue dealt with petitions challenging the Centre's move to make Aadhaar mandatory for people seeking to benefit from various social welfare schemes. However, there are some crucial matters that this verdict has not clarified. The Centre welcomes the Supreme Court judgement announcing that it agrees that privacy is a fundamental right that is subject to reasonable restrictions. In a media briefing at a press conference, Law Minister Ravi Shankar Prasad said that the "essence of the judgment is a wider affirmation of the crux of the observation made by the Finance Minister while moving the Aadhaar act in the house". The minister added that it is "unknown in civilised existence that a government was seeking to collect data of its countrymen without the authority of law".

With the nine-judge bench ruling against the government's stand on privacy, the Aadhaar case will now be referred to a five-judge bench which will hear a clutch of petitions challenging the validity of the Act. This verdict puts to rest any possible attempts to create mechanisms for intrusion into the personal lives of people in India. The judgment reads that "informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well." Meaning thereby that the Supreme Court judgment recognises that when it comes to privacy, the state is not the only institution which poses danger, rather there can be "non-state actors" as well that need to be kept in consideration. It is this that privacy activists in India have been highlighting with the rise of social media networks that have a strong hold over user data. The judgment further added the interpretation of the Constitution cannot be "frozen" in time and technological changes have created new concerns.

In the light of the latest Supreme Court verdict, and the prolonged debate on the right to privacy matter, it is important to recall two earlier judgments of the Supreme Court where it held that privacy was not a fundamental right. First was the case of MP Sharma vs Satish Chandra (1954). MP Sharma's case was related to the search of documents of Dalmia group companies following investigations into the business of Dalmia Jain Airways Ltd. The group was registered in July 1946 and liquidated in June 1952. An investigation revealed malpractices within the company and highlighted attempts from shareholders to hide actual details by submitting false balance sheets. The main issue that was considered was whether such procedures were violative of Article 19 (1) (f) (right to property) and Article 20 (3) (right against self-incrimination) of the Constitution. The judges were to ascertain if there were any constitutional limitations to the government's right to search and seizure and if this would in any way breach the right to privacy. Since the concept of privacy was relatively new, the bench did not focus much on details.

The concept was expanded in the following years. The eight-judge bench said "a power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction." The second significant case was Kharak Singh vs State of Uttar Pradesh (1962) brought to court the issue of state surveillance as against the right to privacy. Kharak Singh, an accused in dacoity case was let off due to the lack of evidence and challenged regular surveillance by police authorities on the grounds of infringement of his fundamental rights. Provisions of the Uttar Pradesh police regulations allowed domiciliary visits at night, secret picketing of Singh's house, tracking/verifying his movement and periodic inquiries by officers. Singh filed a writ petition before the Supreme Court saying that this was an infringement of his fundamental rights. A six-judge bench examined the issue of surveillance and regulations validity governing the Uttar Pradesh police.

The main question was whether surveillance under the Uttar Pradesh police regulations constituted an infringement of the citizen's fundamental rights as guaranteed by the Constitution. Police authorities maintained the regulations did not infringe upon fundamental freedoms and even if they did, they served as reasonable restrictions for the general public's interests and for the efficient discharge of police duty. In a significant judgment, the court ruled that "privacy was not a guaranteed constitutional right". It, however, held that Article 21 (right to life) was the repository of residuary personal rights and recognised the common law right to privacy. However, the provision allowing domiciliary visits was called unconstitutional. It pointed out that fundamental rights under privacy were mutually exclusive and self-contained. Justice Subbarao was a dissenting voice who, however, said that even though the right to privacy was not recognised as a fundamental right, it was essential to personal liberty under Article 21. He also held all surveillance measures to be unconstitutional.

The verdict on the right to privacy comes as a setback for the government which had argued that the Constitution does not guarantee individual privacy as an inalienable fundamental right. The judges concluded that "The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution". The Supreme Court order is based on a series of petitions that have challenged the mandatory and pervasive use of Aadhaar cards which assign a unique 12-digit ID to every citizen. The Aadhaar database links iris scans and fingerprints to more than a billion people. The opposition led by the Congress said that the government's intent of "suppression through surveillance" has been defeated by the Supreme Court. However, this verdict does not comment on whether the government's demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. That decision is left to be made by a separate and smaller bench of the Supreme Court, but experts said that Thursday's ruling could prompt the government to tweak its arguments in that case.

"Aadhaar is an instrument for identification and authentication. Any initiative linked with identification and authentication cannot be seen as violative of the right to privacy," said PP Chaudhary, the junior Law Minister. Congress president Sonia Gandhi hailed the Supreme Court pronouncement and said that the judgment strikes at "unbridled encroachment and surveillance" by the State and its agencies on the life of the common man. She added that Congress and other opposition parties have together spoken for the right to privacy. Rahul Gandhi corroborated with a similar view and expressed through a tweet that the judgment is a "victory for every Indian". In support of the Aadhaar system, the Law Minister claimed that the government has saved Rs 57,000 crore through validation. "Aadhaar validates information for 3 crore people every day", he said, adding that the government stands committed to every principle enunciated in the apex court judgment. With this verdict, regarding the aadhaar matter, the ball is put in the government's court. This verdict will definitely have an impact on further deliberations over aadhaar. There is much to unfold.

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