Call it a faux pas or double standards, but the Centre’s argument in the WhatsApp privacy case stands in stark contrast to its submissions in the Aadhaar litigation.
Appearing for the Centre in a case pertaining to WhatsApp’s policy on data-sharing, Additional Solicitor General PS Narasimha told the Supreme Court: “If data is under attack then it’s an issue of concern. Data is an integral part of life and personality. If data is impinged upon, a citizen’s right to life under Article 21 is affected.”
The other case being heard in the apex court pertains to the Aadhaar scheme, and the Modi government at the Centre questioning the existence of the right to privacy. A nine-judge bench has been formed to settle the matter and hearing on the privacy issue is on.
The stand of the Centre where it links data protection to “right to life” makes one question how the government can have contradicting views concerning basic fundamental rights in the country.
In earlier hearings in the Aadhaar case, the government has repeatedly asserted the Centre’s right to collect and share data for administration purposes. At no point has the Centre conceded that data-sharing can impinge upon the right to life of a citizen guaranteed under Article 21 of the Constitution as a fundamental right.
The argument of the Centre in the Aadhaar case has never been that fundamental rights are well protected under the Aadhaar scheme; in fact the argument has been that no right is violated by data collection and possible sharing of that data.
One is reminded of the Attorney General’s repeated assertions in the Supreme Court pertaining to the “so-called right to privacy” during the Aadhaar hearings.
The right to life is one of the basic fundamental rights under any democratic constitution. It holds a wide ambit, with the only exception being of due process, which means life can be taken away only through a legal process. There are no other exception under which this right can be taken away.
If data-sharing can possibly impinge upon the right to life, why can’t it impinge upon privacy which arguably emanates from Article 21? The Supreme Court’s nine-judge bench will soon settle this question.
The contradiction in the Modi government’s view is further substantiated by its actions outside the court. The government under the Aadhaar Act has not only collected biometric data and other information of citizens but has also made it mandatory to link one’s Aadhaar number with one’s bank account, mobile number, PAN number, etc.
Telecom companies are being allowed to take fingerprints while linking Aadhaar to the mobile number. This data-sharing with commercial enterprises is happening under the government’s watch on a large scale. The government so far has defended its move to share biometric information by saying it’s for verification purposes.
It is also interesting to note that the government has informed the Supreme Court that it is mulling over a legislation to regulate private companies and ensure there is data protection. All these arguments are intrinsically linked to a sense and right to privacy.
The Centre through these submissions links this privacy to the right to life which is one of the very basic and broad rights under the Constitution. If private companies like Google, WhatsApp and Yahoo were to be regulated for data protection, it means the Centre is considering giving statutory recognition to “protection of data” and its possible misuse.
A question begs to be answered – how can my data be protected if a citizen has no right to privacy in this country? My Lords shall decide soon!