In the year 2012, Justice (Retd.) K.S. Puttaswamy filed a petition before the Supreme Court challenging that the Aadhaar violated, among other things, the fundamental right to privacy. The petitioner contended that forcing the citizens to part with their biometric information and the unencumbered power that the State comes to hold under Aadhaar was violative of our rights.
In August of 2015, while the matter was being heard, the Government of India citing the cases of M P Sharma (an 8 Judge bench decision) and Kharak Singh (a 6 Judge bench decision) submitted that there existed no fundamental right to privacy. The Court then referred to a Constitution Bench the question of the right to privacy as a fundamental right.
On Tuesday, 18th July 2017, the Constitution Bench (note that it was set up after two years of the matter having been referred to) decided that the question of privacy as a fundamental right would be decided by a 9-Judge bench. And on Wednesday, the arguments began.
It is to be kept in mind that the 9-Judge bench is only deciding the limited point of whether or not there exists a fundamental right to privacy, the constitutionality of Aadhaar shall be decided some other day. This exercise is problematic in the sense that had the matter been clubbed with Aadhaar and other cases, it would have allowed the Court to also delineate the right or the limits to privacy, if it thought there were any needed.
Therefore assuming we might have declared a fundamental right to privacy, we shall have to wait another day (months really) to find out about Aadhaar or whether or not Ratan Tata’s privacy was violated when Outlook ran the Radia tapes.
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The arguments so far
The principal contention of the petitioners is that there exists a fundamental right to privacy, even if it might not have been spelled out explicitly in the Constitution; that it is only logical that the ‘right to life’ encompasses within it the right to lead a life without the fear of illegal surveillance, decisional autonomy, informational self-determination, etc.
The petitioners have highlighted the various cases of the Court which explicitly spelt out privacy as a fundamental right.
The second principal contention is that of privacy as a natural right and that of limited government. To over simplify the Hobbesian theory, in the natural state all human beings are born with a set of rights (privacy being one of them); when the individuals come together to form a society, they tend to give up on some of the rights to the government for the effective administration. The power of the government is however restricted.
To illustrate, while the government may restrict freedom of speech, as it does via its mandate through Article 19 (2), it cannot abrogate the right in toto. The same applies with respect to privacy. The Preamble of our Constitution declares India to be a democratic country, the government of the day ought not to come up with a structure which might be abused to subject people to a surveillance State, this infringing upon their basic rights.
The society which the individuals enter into cannot put them in a worse state than that existed naturally.
Please note that the above is only a broad summation of the two major arguments.
Why we need privacy?
To enjoy liberty.
To try and explain the importance of privacy: assuming the Court holds there exists no fundamental right to privacy, the State tomorrow may come up with a legislation that allows a police person, or for that matter a ‘gau rakshak’ to enter your house and look around whether or not you are slaughtering beef only because there might be a suspicion that you are. This gau rakshak enters your house everyday, looks around your belongings everyday, one day you are having a party at your place, the gau rakshak enters because, well, s/he wants to.
Now that is a scary notion and points to the need for a recourse which would hold the state accountable for the draconian legislation.
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