Replying to the Supreme Court’s question whether making a private citizen part with personal data was not tantamount to a breach of the right to privacy, Attorney-General Mukul Rohatgi described the right to privacy a “vague” concept; it was not guaranteed under the Constitution.The court was deliberating on petitions on the legality of the Aadhaar scheme, being implemented by the Unique Identification Authority of India (UIDAI).
Activists cited the dissenting note, in the Emergency period, of Justice H R Khanna in the ADM Jabalpur vs Shiv Kant Shukla case, in which the Supreme Court considered whether those arrested or detained illegally during an Emergency could move habeas corpus petitions.
While three judges on the bench favoured the government’s arguments against it, Justice Khanna had dissented, saying, “Even in the absence of Article 21 (Protection of life and personal liberty) in the Constitution, the state has got no power to deprive a person of his life or liberty without the authority of law. That is the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations.”
Activists argue that like the Right to life and personal liberty, the right to privacy is a “natural law” which the state cannot take away from an individual.
In the Maneka Gandhi vs Union of India case, where the petitioner had questioned the order to surrender her passport in “public interest”, the Supreme Court had held that it was not enough that interests of the general public may be served in future by the order, but should actually be in public interest.
This was despite the Constitution clearly not guaranteeing the right to go abroad. Though Section 10(3) of the Passports Act, authorising impounding of a passport, was valid, action taken under it may be void if it offended a fundamental right.
The question would always remain whether such an order contravenes a fundamental right, the court had observed.
The Right to life and liberty is an ever-expanding concept, pointed out lawyer D Nagasaila, an activist of the People’s Union for Civil Liberties. The right to privacy is a natural right and the terms “life” and “liberty” have great meaning and depth, as used in the Constitution, which the Attorney General has the duty to maintain in letter and in spirit, she told Express.