On a plethora of cases that have
flooded various Courts in the country challenging the imposition of Aadhaar on
citizens as a mandatory identity proof and linking the unique ID to almost all
personal identification documents including PAN, Phone Number, Social Welfare
Schemes, etc. and with the impending proposal of the Law Commission to link
Aadhaar with the Compulsory Registration of Marriage[i],
today’s 9-bench Supreme Court decision on the matter bears great relevance to the
notion of privacy in India. Before the Bench decides on the matter, let us take
a peep into the backdrop of the situation and analyze the earlier stand taken
by Indian courts towards privacy of its citizens.
The Constitution of India does
not contain any express provision for protecting privacy, but on several
occasions the question has been addressed under the Right to Life[ii],
and the possibility of including the right in the purview of a broadened
concept of Right to Life. The Supreme Court considered the question in the case
of M
P Sharma v Satish Chandra[iii],
where an 8-Judge bench decided that “….search
and seizure is an overriding power of the State for the protection of social
security… Constitution makers have thought fit
not to subject
such regulation to constitutional
limitations by recognition of the
fundamental right to privacy.. there is no justification for
importing into it, a totally different fundamental right by some process of
strained construction..”. The decision did not allow Privacy to be incorporated
into the available Fundamental Rights, and upheld the State’s power to monitor
social security.
Further, in Kharak Singh v State of UP[iv]
the Court ruled that “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”.
In Rajagopal v State of Tamil Nadu[v],
the Supreme Court held that “…..Right
to privacy is not enumerated as a fundamental right in our Constitution but has
been inferred from Article 21.” The Court also went ahead to state that “…any right to privacy must encompass and
protect the personal intimacies of the home, the family, marriage, motherhood,
procreation and child-rearing”.
The Aadhaar Issue with Privacy
Justice K S Puttaswamy (Retd.) v
Union of India[vi]
bears great relevance in this regard, as the Aadhaar Scheme was
challenged in several petitions claiming that collection of such biometric data
is violative of the “right to privacy. In the said case, it was pleaded by
Attorney General and the other Senior counsel that “…to settle the legal position, this batch of matters is required to be
heard by a larger Bench of this Court as these matters throw up for debate
important questions..”
The Court identified two
questions that need to be considered in arriving at a decision on the matter:
(ii)
If such a right exists, what is the source and
what are the contours of such a right as there is no express provision in the
Constitution adumbrating the right to privacy.
The
Court in the case declared that “…the
cases on hand raise far reaching questions of importance involving
interpretation of the Constitution. …. pronouncement made by larger Benches of this
Court cannot be ignored by the smaller Benches without appropriately explaining
the reasons for not following the pronouncements made by such larger Benches. to
give a quietus to the kind of controversy raised in this batch of cases once
for all, it is better that the ratio decidendi of M.P. Sharma (supra) and
Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court where the right to privacy is either
asserted or referred be examined and authoritatively decided by a Bench of
appropriate strength.”
Subsequent to the havoc caused by
the outpour of challenges against Aadhaar, Chief Justice Mr. K.S. Khehar has
formed a Bench of Nine Judges who will bring a final settlement on the question
whether Right to Privacy is a Fundamental right or not, and if so, then the
Constitutionality of collecting and storing biometric and social data by way of
Aadhaar will be examined.
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