A Summary of Day 4 of the Nine-Judge Constitution Bench Hearing

The 9-Judge Constitution Bench continued hearing the arguments of the Government of India to settle the question of whether there exists a fundamental right to privacy in India. In August 2015, the Government of India denied that a fundamental right to privacy exists in India in the ongoing Aadhaar case. After the 9-judge bench finishes hearings on the limited question of whether Indians have a fundamental right to privacy, a 5-judge bench is then expected to rule on whether the Aadhaar scheme violates such a fundamental right and will thereby decide the fate of the Aadhaar project.

On Thursday, arguing for the Union, the Attorney-General K.K, Venugopal began with reading out US Supreme Court decisions arguing that “informational privacy” can never be a fundamental right. In the discussion, Justice DY Chandrachud countered this position saying America lagged behind Europe in protecting informational privacy. In response, the Attorney-General reiterated that the right to privacy could not be determined without taking into account cultural and environmental norms, which he held the US courts had done, and that India should not imitate foreign jurisprudence.

Justice Chandrachud expressed the need to determine what kind of data gets protection under privacy laws, which in turn brought up the question of balancing compelling state interest and legitimate state interest. To the AG’s subsequent argument for the consideration of legitimate state interest (with which Justice Chandrachud and Nariman did not agree), Justice Chandrachud underlined the need for robust data security mechanisms.

Subsequently, the Additional Solicitor-General Tushar Mehta read out provisions from the Aadhaar Act. 2016, dealing with information sharing. Justice Nariman asked if the discussion on privacy interests in the Aadhaar Act suggested a legal recognition of privacy. Choosing not to answer that directly, the ASG sought to assure the court that the Act protected both privacy and data.

Attorney-General K.K. Venugopal, however, jumped in with the claim that protecting privacy through a legislative Act meant that there was no fundamental right to privacy. He reiterated that if there was a fundamental right to privacy it could not be claimed in relation to Aadhaar. In conclusion, he revisited the two cases at the heart of the Constitution Bench hearing – M.P. Sharma and Kharak Singh– and emphasized that the majority views in these should be upheld.

Senior Advocate C.A. Sundaram then argued for the State of Maharashtra, claiming that privacy could not be unambiguously defined and could only be protected insofar as the impact on other fundamental rights.Justices Bobde, Khehar, and Chandrachud retorted that even life and dignity could not unambiguously denied. Continuing after lunch, Mr. Sundaram claimed that the framers of the Constitution had only included exact rights as fundamental rights. He argued for testing privacy against other Fundamental Rights and said it was not a fundamental right per se.

Sparring with the Justices, Mr. Sundaram sought to show how Kharak Singh as well as various subsequent judgments in India and the US primarily dealt with other fundamental rights rather than privacy, and that zones of privacy were created by specific guarantees. Justice Nariman countered that seeing privacy solely in the context of liberty was difficult, but agreed to the later point that if privacy was recognized as a fundamental right, its extent would have to be defined.

On the same day, Right to Food campaign issued a strongly worded statement stating that the Campaign was “shocked and dismayed” that Government of India’s had claimed in court a day earlier that even if Aadhaar infringed on privacy, it was doing to so to protect Right to Food and Right to life.

The Right to Food campaign stated that government data shows lakhs of low income households, pensioners are not able to access their food rations because of errors in Aadhaar seeding, network failures, and biometric failures. The Campaign opposes the use of Aadhaar in ration, mid day meals, and other nutrition schemes. Aadhaar does not protect or enhance the Right to Food and the Right to Life in fact it deepens the difficulty faced by the poor in accessing these fundamental rights.