Privacy, a non-negotiable right

Whether it was required of the Attorney General to question the citizen’s right to privacy to defend the legality of Aadhaar is indeed questionable as the constitutional status of this right has been decisively answered in successive and lucidly articulated judgments

August 10, 2015 02:00 am | Updated May 31, 2016 12:50 pm IST

"A trade-off between Aadhaar and the right to privacy is incomprehensible." Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

"A trade-off between Aadhaar and the right to privacy is incomprehensible." Picture shows biometric particulars being collected in Tamil Nadu. Photo: K. Ananthan

This piece seeks to contest the Attorney-General’s somewhat startling assertion before the Supreme Court that Indians do not have a constitutional right to privacy.

This is the background. Posed the question on whether making a citizen part with vital personal data under the >Aadhaar scheme does not amount to intrusion of privacy, the Centre replied in the Supreme Court last month, on July 22, that >privacy was not a fundamental right . Attorney-General Mukul Rohatgi said the right to privacy had been a “vague” concept all these years, a subject of varying conclusions from the Supreme Court. He told a three-judge Bench that the Constitution-makers had never intended to make it a fundamental right. He then quoted a majority 1962 judgment of the Supreme Court in the Kharak Singh case that held that privacy was not a “guaranteed right” under the Constitution. The submissions came during the hearing of a batch of petitions seeking to stop the implementation of the scheme. The government said it was too late to do that as Rs.5,000 crore had been spent on Aadhaar, which had accessed 80 crore people.

Ashwani Kumar

Interpretation of rights

This submission is premised on the perception of conflicting judgments by the Supreme Court on the subject and on the binding effect of a decision by a larger Bench of the Court in M.P. Sharma & Ors. v s. Satish Chandra, District Magistrate Delhi & Ors (1954 AIR 300, 1954 SCR 1077) . Speaking through the Attorney General, the government has sought consideration of the issue by a larger Bench to clarify the constitutional status of the >right to privacy .

Thus, the question raised is indeed of critical importance to the future of our liberal democracy. But in my submission, it stands decisively answered in successive and lucidly articulated judgments of the final Court. Whether it was required of the Attorney General to question the citizen’s right to privacy to defend the legality of Aadhaar — an undoubtedly welcome initiative for the purpose it seeks to subserve — is indeed questionable. A trade-off between Aadhaar and the right to privacy is incomprehensible. The position taken by the government on the issue is wholly untenable for the reasons which follow. Our evolving constitutional jurisprudence on privacy rights post Sharma ( supra ) unambiguously affirms the right to privacy as an integral component of the right to life and personal liberty envisaged in the expansive interpretation of Article 21. In G ovind vs. State of Madhya Pradesh (1975) , the Supreme Court after noticing the decision in Kharak Singh vs. State of UP (AIR 1963 SC 129) held that “many of the fundamental rights of citizens can be described as contributing to the right to privacy”. In Kharak Singh ( supra ), the Court while holding that privacy was not a guaranteed constitutional right also held that Article 21 was the repository of residuary personal rights and recognised the common law right to privacy. Kharak Singh also cited the constitutional promise of dignity of the individual as contained in its preamble. The Sharma and Kharak Singh decisions inasmuch as these denied a specific constitutional right to privacy proceeded on the basis that fundamental rights in Chapter III of the Constitution were self-contained and mutually exclusive — an approach that stands jettisoned in subsequent cases, including by an 11-judge bench in Rustom Cavasjee Cooper vs Union of India (1970 (3) SCR 530) , popularly known as the Bank Nationalisation case. Thus, when Govind was decided, the approach to interpretation of fundamental rights had undergone a fundamental change.

Privacy-dignity equation

Integral to the Court’s approach to privacy in Govind ( supra ) and since is the recognition of man’s “inviolate personality”, the inner man, “rights inherent and inalienable” and “private space” in which man may become and remain ‘himself”. It also referred to Article 8 of the European Convention on Human Rights which recognises the “right to respect for private and family life”. Importantly, by equating “privacy-dignity claims” and suggesting that these deserved to be “examined with care and to be denied only when an important countervailing interest is shown to be superior”, the Court, following Kharak Singh , by implication derived the right to privacy from the notion of dignity of the individual, which while not specifically spelt out as a fundamental right is referred to in the Preamble of the Constitution as an aim to be secured by and under the national Charter.

The right to dignity has since been declared by the Supreme Court as a non-negotiable constitutional right flowing from the spirit of the Constitution and the explicitly guaranteed right to life and personal liberty in Article 21 ( Suresh Kumar Koushal vs. Naz Foundation, (2014) , Mehmood N. Azam vs. Chhattisgarh (2012) , Deepak Bajaj vs. State of Maharashtra (2008) , Consumer Education and Research Centre and Others vs. Union of India & Others (1995) , Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Others (1981) , Prem Shankar Shukla vs. Delhi Administration (1980) . The right to dignity which inheres in each individual as a human being is incomplete without the right to privacy and reputation. The right to reputation, though not specifically spelt out in the Constitution, has, like the right to privacy, been traced to a right to life with dignity under Article 21 (State of Maharashtra vs. Public Concern for Governance Trust & Others: (2007) 3 SCC 587) . The UN Charter (1945), Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966), all of which have been ratified by India, affirm “the natural dignity of man”.

The sweep of Article 21

The ratio of M.P. Sharma ’s case (1954) that it was not possible by a “strained construction” to import the right to privacy into a totally different fundamental right , did not bind subsequent benches of the apex court to a restricted interpretation of Article 21 since the decision was specifically limited to the scope of Article 20(3) and according to settled law as to the binding effect of precedents, was “an authority for what it actually decided” (1987 1 SCC 263) . Therefore, it is clear that the Supreme Court in its subsequent decisions on the right to privacy did not consider itself bound by the ratio in Sharma because the court located the right in Article 21 itself and was not importing a new right into a “totally different right”. Also, because it was permissible after R.C. Cooper (supra) to construe Article 21 with reference to other fundamental rights expansively. Thus, the right to privacy stands included in the sweep of Article 21 itself and the “penumbras of the guaranteed rights….”. In his inimitable expression, Justice V.R. Krishna Iyer declared in Maneka Gandhi (supra) that “no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the direction and correction needed for interpretation of these basic provisions.”

This position stands repeatedly affirmed in a series of judgments by the apex court as in R. Rajagopal vs. State of Tamilnadu (1994) , ‘A’ vs. Hospital 7 (1999) , PUCL vs. Union of India (1997) , Sharda vs. Dharmpal (2003) , District Registrar vs. Canara Bank , Suchita Srivastava vs. Chandigarh Administration (2009) , Amar Singh vs. Union of India & Ors. (2011) , Suresh Kumar Koushal vs. Naz Foundation , and in Ratan N. Tata vs. Union of India, 5 SCC 639 .

Declaring that Article 21 clubs life and liberty, Justice Krishna Iyer reminded us, in the context of the interplay of Articles 14, 19 and 21, that “man is not dissectible into separate limbs and, likewise cardinal rights in, an organic constitution which make man ‘human’ have a synthesis....”. Indeed, Justice Iyer was endorsing the constitutional principle espoused by Justice Cardozo that “kindred aims shade off into one another by imperceptible gradations ....” (Benjamin N. Cardozo, T he Nature of the Judicial Process ).

A holistic reading of the current state of our constitutional jurisprudence would demonstrate that the right to privacy is firmly embedded in our constitutional scheme as a non-negotiable imperative that owes no apology to a myopic view of our republican charter. Indeed, considering the fundamental principles of the nation as “not rules for the passing hour, but principles for an expanding future”, the apex court, as the ultimate arbiter of constitutional conscience, has given fundamental rights their meaning in new settings consistent with the aspirations of our people. This is so that we may have a ‘living constitution’ which can protect, preserve and defend sacrosanct libertarian values that remain the bedrock of the Republic and constitute the core of the Constitution. Rather than deny us our constitutional right , the Union Government ought to enact a privacy legislation to clearly define the rights of citizens consistent with the promise of the Constitution. My apologies, Mr. Attorney General!

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(Ashwani Kumar, a former Union Law Minister, is a member of the Rajya Sabha and a senior advocate of the Supreme Court. The views expressed are personal.)

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