SC: Aadhar not mandatory & Constitution bench to consider the right to privacy question

By Pushan Dwivedi and Joshita Pai

Highlights from the Court’s ruling

The Supreme Court bench constituting J. Chelameswar, S.A. Bobde and C. Nagappan has decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.

The Apex Court passed an interim order directing the government to publish in electronic and print media that the enrollment is not mandatory. It also made it very clear that the production of the Aadhar card cannot be made compulsory for essential services. With respect to the sharing of personal information, the Court has ordered a strict non-disclosure of information unless the information is sought through a court order for the purpose of a criminal investigation. The purpose of Aadhar has been limited to the Public Distribution System including distribution of food grains and kerosene only.

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Arguments in court

Advocate Shyam Divan, appearing for the petitioners, asked for interim relief and for directions to suspend further Aadhar enrollments, prohibit commercial use of Aadhar database, and to direct the government to telecast advertisements to the effect the Aadhar is not mandatory. He based his arguments on the notable absence of any government officer supervising the process and the dearth of statutory framework monitoring the program.

The Attorney General rebutting the plea of suspension of further enrollments insisted that the balance of probabilities have shifted in favour of the government since ninety one percent of the adult population has already been enrolled. He dismissed the privacy concerns relating to the use of database stating that the petitioners stating privacy qualms do not represent the majority of the population. He also argued that the purpose of issuing Aadhar cards is to provide social benefits to people and the program is not built with the aim of carrying surveillance. On the question of making it clear that Aadhar is not mandatory, the AG affirmed that the government is willing to advertise to the public that the enrollment is not mandatory.

There is no data available verifying the number of enrolled citizens. Soli Sorabjee remarked that “there are eight million people who have enrolled that are not to be found in the Aadhar database” His line of arguments primarily focused on the absence of any statutory system monitoring it.

A copy of the interim order can be found here: Aadhar Interim Order

(Pushan Dwivedi and Joshita Pai are Research Fellows at the Centre)

A basic right is in danger

The post originally appeared in The Hindu on 31st July 2015.

The Attorney General’s argument questioning the right of Indians to privacy is wrong on two counts. But worse, it goes against the interests of the people on every count.

“While opinions may vary about Aadhar, the government is expected to act in the best interests of the people.” Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

The last ten days have spelt dark times for the right to privacy. On one hand, the DNA Profiling Bill, which may result in a database of sensitive personal data with little to prevent its misuse, is being tabled in Parliament. On the other hand, the Attorney General took a shocking position in the Supreme Court of disputing the very existence of the right to privacy in the Aadhar case.

Undermining decades of evolution of this right through Supreme Court judgments, Mukul Rohatgi argued that it is necessary to put together a constitutional bench to determine whether the citizens of India have a right to privacy.

He is in the wrong for two reasons. The first is technical: he is mistaken in his assertion that M.P. Sharma v Satish Chandra and Kharak Singh v. the State of U.P. created legal doctrine that is no constitutional right to privacy. The second reason is political. A lawyer holding the Attorney General’s office should consider the appropriateness of using that office and public resources when denying that Indian citizens have privacy rights, which are universally recognised human rights. This is all quite apart from the fact that India has ratified the International Covenant on Civil and Political Rights, which unequivocally supports the existence of the right to privacy. The United Nations has gone so far as to create a Special Rapporteur on the right to privacy this year. In the context of US surveillance of its citizens, the Indian government has acknowledged the existence of the right to privacy.

In the Constitution

The two decisions that Mr. Rohatgi references did not raise questions about the right to privacy as a whole. Both confined themselves to the limited question of whether principles mirroring the US Fourth Amendment may be read into the Indian Constitution, which is only one element of the right to privacy. The M.P. Sharma case did this while ascertaining if there are any constitutional limitations to the government’s search and seizure of people’s homes, persons and effects; and the Kharak Singh case did this in the context of physical surveillance of ‘history sheeters’.

In M.P. Sharma, the judgment states, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a totally different fundamental right by some process of strained construction” (emphasis added). This makes it clear that it is not the right to privacy as a whole that is being referred to. The American Fourth Amendment pertains to the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”, not to the right of privacy in its entirety.

The M.P. Sharma judgment goes further to say, “It is to be remembered that searches of the kind we are concerned with are under the authority of a Magistrate… When such judicial function is interposed between the individual and the officer’s authority for search, no circumvention thereby of the fundamental right is to be assumed.” This makes it evident that the court desisted from intervening because it saw the requirement of a Magistrate’s order as safeguard enough.

Similarly, although the judgment in Kharak Singh contains the sentence with the ominous beginning “as already pointed out, the right of privacy is not a guaranteed right under our Constitution”, this sentence cannot be taken out of context. The ‘already pointed out’ refers to an earlier portion of the same judgment in which the court quotes the U.S. Fourth Amendment, and then declares that our Constitution does not confer any ‘like constitutional guarantee’. This makes it clear that it is the Fourth Amendment text specifically that the court was referring to.

The court also belied its own position by finding that unauthorised intrusion into a person’s home violates the common law principle of “every man’s house is his castle”. The judgment explicitly takes the position that Article 21 is a repository for residual personal liberty rights, leaving it open for future reading of such rights into Article 21.

It is apparent that the two cases do not rule out a broad constitutional right to privacy. It is almost impossible to consider the right to privacy in its entirety in a single case since it is a bundle of rights including everything from safeguards against unauthorised collection of personal data to restrictions on intrusion into private spaces. The cases that have emerged from the Supreme Court over the years make this apparent.

Different elements of privacy rights have been read into our right to life and our right to free expression. We have a right against untrammelled interception of our communication, and against doctors divulging personal medical information. Long before the Constitution or the Constituent Assembly came into being, the right to privacy of women in purdah was acknowledged by common law, which forbade the building of balconies above their quarters. We do, therefore, have a rich history of enforcing the right. Like many other nations, we called it by different names and have found it within legal and cultural norms unique to India.

It is common for lawyers to use every strategy they can to win cases but the Attorney General is no ordinary lawyer. S/he is a constitutional authority. It is inappropriate for someone of that stature to argue that the people of India do not have a right to privacy. Former Attorney General Niren De was criticised sharply for telling the Supreme Court that it could be helped if the right to life was violated during Emergency. Mr. Rohatgi’s argument is comparable.

This is a democracy, and while opinions may vary about Aadhar, the government is expected to act in the best interests of the people. Here, we have the Attorney General stepping away from arguing that the government’s actions are in the interests of the people to say that the people do not have rights in the first place.

It is not a case of the government’s lawyer arguing for the prevalence of the wider community’s interests over individual rights, or disputing what is in the interests of the majority of citizens. Mr. Rohatgi, on behalf of the Indian government, is making an argument that is blatantly against the rights and interests of all citizens of India.

Interestingly, the argument runs contrary also to the Minister of Communications and Information Technology’s statements recognising citizens’ right to privacy in the context of both US and Indian surveillance.

Time to clarify

This incident is about more than an argument made in court. It is a serious problem if the Union government makes statements that respect privacy and then takes actions that attempt to destroy it. It is also inconsistent for the government to argue internationally that the U.S. has violated Indian citizens’ right to privacy and then to argue before the Supreme Court that Indian citizens do not have the right to privacy.

Under the circumstances, it is necessary for the government to issue a statement clarifying its stand, which I hope will consist of some form of support for citizens’ privacy rights. Once this is clear, perhaps the Attorney General could continue the arguments that take his client’s wishes into account.

A clear statement from the Prime Minister’s office might also enable other ministries to ensure that they embed this right in their policies. This, for example, might have gone a long way in ensuring that cast-iron privacy safeguards were added to the DNA Profiling Bill.

Ignoring the right to privacy will not only affect India’s ‘global image’ more than any critical documentary does, it will also complicate international commercial relations. Who would send their information or employees to a country that disregards its residents’ right to privacy?