Privacy is a fundamental right under Article 21, rules Supreme Court

A nine-judge Constitution Bench of the Supreme Court, led by Chief Justice of India JS Khehar, through different but concurring judgments on Thursday upheld the right to privacy as intrinsic to life and liberty under Article 21 and various other fundamental freedoms enshrined in PART III of the Indian Constitution.

The BJP-led NDA government had earlier argued that right to privacy is not a fundamental right guaranteed in the Indian constitution. The critics including petitioners, activists, academics and lawyers sceptical of the Aadhaar project, however, had argued that though the right to privacy is not explicitly set out in the Constitution, it nevertheless guarantees it implicitly.

The controversy surrounding Unique Identification Authority of India (UIDAI) and Aadhaar involved privacy concerns, security of the database and on the legality of making Aadhaar mandatory for several government welfare schemes.

The Aadhaar database that links iris scans and fingerprints of more than a billion people, is said to be susceptible to cyber-attacks. The petitions filed in SC had challenged the Aadhar project, with its biometric registration process through private contractors and linkage to basic and essential subsidies, as a violation of citizens’ right to privacy.

Privacy, according to experts, extends to several aspects of human life including bodily integrity, personal autonomy, informational self-determination, protection from State surveillance, dignity, confidentiality, compelled speech, freedom to dissent or move or think.

Here is a timeline of the issue in the apex court in the past years:

August 2, 2017: The nine-judge Bench reserves the reference for judgment while strongly pitching for the framing of “overarching” guidelines to protect private information in public domain, saying there was a need to “maintain the core of privacy”.

July 19, 2017: On the first day of hearing the reference, the nine-judge Bench of Chief Justice JS Khehar, Justices Chelameswar, Bobde, RK Agrawal, Rohinton F Nariman, Abhay Manohar Sapre, Chandrachud, Sanjay Kishan Kaul and Nazeer orally observed that privacy was not absolute and we now lived in a world of ‘big data’.

The UIDAI informed the court that the Centre has constituted a committee of experts led by former Supreme Court judge, Justice BN Srikrishna to identify “key data protection issues” and suggest a draft data protection Bill.

July 18, 2017: A five-judge Bench comprising CJI JS Khehar decides that a nine-judge Bench of the SC should first decide the question whether privacy is a fundamental right and part of the basic structure of the Indian Constitution.

Two judgments of the Supreme Court — the MP Sharma case verdict pronounced by an eight-judge Bench shortly after the Indian Constitution came into force in 1950 and the Kharak Singh case verdict of 1962 by a six-judge Bench — had dominated the judicial dialogue on privacy since Independence. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right.

July 12, 2017: After goading by Justice Chelameswar, senior advocate Shyam Divan and Attorney-General KK Venugopal make a joint mentioning before by CJI JS Khehar for the early setting up of a five-judge Constitution Bench to decide a bunch of petitions challenging the constitutionality of the Aadhaar scheme, primarily whether the scheme which requires the parting of biometric details of citizens to access welfare and benefits, is a violation of the right to privacy. Chief Justice agrees and sets the date of hearing as July 18.

June 9, 2017: The SC upheld the validity of linking Aadhaar with Permanent Account Number (PAN). However, it exempted those who do not have Aadhaar from mandatorily getting one till it decides on whether it is a violation of privacy.

May 19, 2017: SC agrees to hear petition filed by several persons, including former NCPCR chairperson and Magsaysay winner Shanta Sinha, against 17 government notifications allegedly making Aadhaar mandatory to access welfare schemes and benefits after June 30, 2017.

April 27, 2017: Senior advocate Shyam Divan submits before an SC Bench of Justices AK Sikri and Ashok Bhushan that a newly inserted Section 139AA in the Income Tax Act—which mandates the linking of Aadhaar with PAN—is a “Faustian bargain”.

Centre counters that taking fingerprints and iris impressions for Aadhaar is not an invasion of a citizen’s body as the right of a person to his own body is not absolute.

March 27, 2017: CJI JS Khehar orally observes that there is no fault with the government’s choice to make Aadhaar mandatory for “non-welfare” activities like opening a bank account or filing Income Tax returns or applying for a mobile connection. The Lok Sabha’s recently-passed Finance Bill made Aadhaar mandatory for filing tax returns and getting a permanent account number (PAN).

April 25, 2016: The passage of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 on March 11, 2016 comes under SC scanner after parliamentarian Jairam Ramesh challenges its introduction as a Money Bill as “malafide and brazen”.

October 15, 2015: SC extends the voluntary use of Aadhar card to Mahatma Gandhi National Rural Employment Guarantee Act, all types of pensions schemes, employee provident fund and the Prime Minister Jan Dhan Yojana.

The five-judge Constitution Bench led by the then CJI HL Dattu says the purely voluntary nature of the use of Aadhaar card to access public service will continue till the court takes a final decision on whether Aadhaar scheme is an invasion into the right to privacy of the citizen.

October 8, 2015: SC decides to set up another Constitution Bench to re-look the question in the light of raging controversy that the Aadhaar card scheme is an invasion into citizen’s privacy. Hearing is scheduled for October 15, 2015.

October 7, 2015: SC refers the question whether a person can voluntarily shed his right to privacy by enrolling for Aadhaar to easily access government welfare services to a Constitution Bench. The Bench does not modify its August 11, 2015 order restricting the use of Aadhaar cards to only public distribution system and LPG connections. Instead, it left the order open for the Constitution Bench to consider it and take a call.

August 11, 2015: Three-judge Bench holds that “balance of interest” is better served if Aadhaar is made neither mandatory nor a condition for accessing benefits one is already entitled to. The court clarified that this interim order will be in vogue till a five-judge bench decide on the larger constitutional issue whether the Aadhar scheme, and its biometric mode of registration, amounts to an intrusion into the privacy of a citizen.

August 6, 2015: The three-judge Bench reserves its order on the petitions. Centre seeks a larger bench to answer questions of law, primarily whether privacy is a fundamental right guaranteed under the Constitution.

July 22, 2015: Centre argues that right to privacy is not an inalienable fundamental right enshrined in the constitution and the petitions (filed under article 32) should be dismissed.

July 21, 2015: On a batch of petitions challenging the Aadhaar scheme as a violation of privacy, a Bench of Justices J Chelameswar, SA Bobde and C Nagappan held that demands made by officials for Aadhar card are in clear violation of the Supreme Court’s interim order of September 23, 2013 that Aadhaar is voluntary.