The apex court said that the directive principles of state policy obliged it to read privacy — which was recognised by international conventions as an inalienable human right — into fundamental rights. Representational
Amid the debate over privacy rights, the Centre told the Supreme Court on Tuesday that it had constituted an expert committee under Justice (retired) B N Srikrishna to “study various issues relating to data protection in India… and suggest a draft data protection Bill”.
“The Government of India is cognisant of the growing importance of data protection in India. The need to ensure growth of the digital economy while keeping personal data of citizens secure and protected is of utmost importance. It has thus been decided to constitute a Committee of Experts under the Chairmanship of Justice B N Srikrishna, former Judge, Supreme Court of India, to identify key data protection issues in India and recommend methods of addressing them,” Additional Solicitor General Tushar Mehta told a nine-judge Constitution bench headed by Chief Justice of India J S Khehar, which is hearing the question of whether privacy is a fundamental right.
Mehta, who appeared on behalf of the Unique Identification Authority of India, the nodal agency for implementing Aadhaar, submitted a copy of the notification issued by the Ministry of Electronics and Information Technology on Monday.
The apex court said that the directive principles of state policy obliged it to read privacy — which was recognised by international conventions as an inalienable human right — into fundamental rights. The observation came from Justice R F Nariman in response to the submission by senior counsel A Sundaram, representing Maharashtra, that the Constituent Assembly had considered the question whether privacy should be granted fundamental right status and rejected it.
“There are international conventions to which India is a signatory. Privacy is expressly declared in the 1948 UN Convention on Human Rights as an inalienable human right… it is our duty as Constitutional Court to read it into fundamental rights,” Nariman told the counsel.
Sundaram told the bench that “the intention of the founding fathers is clear. If the court were to hold that this (not giving privacy fundamental rights status) is no longer good, it will amount to saying that the intent is no longer good. That is introduction and not interpretation. That can be done only by Parliament”.
He stressed that “with technological changes, there may be cases of violation of a persona privacy and the remedy is to bring in suitable regulatory mechanism and not by redefining Article 21 (of the Constitution)”.
ASG Mehta told the bench that privacy was a very valuable common law right and there was no need to elevate it to a fundamental right to protect it. “If privacy is recognised as a fundamental right, it will be stepping into very very hazardous territory… under garb or privacy, it will be misused… all out efforts will be made to stop good governance and poor will suffer,” Mehta said, referring to what he claimed were beneficial aspects of Aadhaar. “If there is any violation of privacy, statutes can take care of it.”
This prompted Justice Nariman to ask, “What makes you apprehend that if we uphold privacy as a fundamental right we will not uphold the Aadhaar scheme?”
The ASG submitted that privacy was a vague right incapable of definition. “You cannot thrust a new fundamental right into the Constitution. This would require legislative deliberations,” he added.
On Aadhaar, Mehta submitted that it is a “classic case where human privacy is protected to the maximum”. Opposing suggestions that it enabled surveillance, the ASG said “Aadhaar Act considering its scheme and provisions, tracking is impossible”.
Justice D Y Chandrachud, who was on the bench, pointed out that there must be some “overarching principles” in protection of privacy rights and that “every holder of information must disclose the purpose for which it is sought for and introduce some guarantees that it will not be used for any purpose other that the purpose for which it is sought for”. Arguments in the matter will continue on Wednesday.