Gopal Krishna
Why right to privacy is an absolute fundamental right

If once people become inattentive to the public affairs, “you and I, Congress and Assemblies, judges and Governors shall become wolves.” – Thomas Jefferson, author of Declaration of Independence and the third President of the US, in a letter dated January 16, 1787.

From the verdict recognising the right to privacy as a fundamental right, it emerges that the case about Central Identities Data Repository (CIDR) of 12-digit Unique Identification (UID)/Aadhaar numbers is deeply linked with the Supreme Court’s infamous verdict in ADM Jabalpur versus Shivkant Shukla (1976) case.

Recalling the latter case, Justice Dr D.Y. Chandrachud, as part of the nine-judge Constitution Bench in the CIDR case, noted how in the I.R. Coelho versus State of Tamil Nadu (2007) case, the nine-judge Constitution Bench took the view that the majority verdict of the court in ADM Jabalpur was flawed as it was based on “restrictive reading of right to life and liberty” and observed that it “stood impliedly overruled by various subsequent decisions”. Taking these decisions into account, in his decision in the CIDR case, Justice Chandrachud observed, “We now expressly do so,” adding “ADM Jabalpur must be and is accordingly overruled” on August 24. This view has the approval of the nine-judge Constitution Bench, set up in the CIDR case.

From a careful reading of the 547-page long verdict, it becomes apparent that although the verdict in the ADM Jabalpur case has been expressly overruled 41 years later after it was impliedly overruled 31 years ago, it is yet to be sufficiently overruled. Whether or not it has been overruled will become visible from the court’s verdict in the CIDR project that entails linking of UID/Aadhaar with essential services and citizens’ entitlements, benefits, and services, making the right to have rights, including the right to life and personal liberty, dependent on biometric identification-based UID/Aadhaar as per Section 2 of the Aadhaar Act 2016.

Prior to this Act, biometric identification was required only for prisoners under Identification of Prisoners Act, 1920, whose object “is to provide legal authority for the taking of measurements of finger impression, footprints and photographs of persons convicted of or arrested in connection with certain offences”. Aadhaar makes citizens worse than prisoners.

In the opening paragraph of his order, Justice R.F. Nariman states that one of the grounds of attack on the said scheme is that the very collection of such data is violative of the Right to Privacy referring to Aadhaar scheme, akin to the 21st-century version of the panopticon called CIDR.

The first verdict in the CIDR of UID/Aadhaar case has recognised the right to privacy as an intrinsic part of the right to life and personal liberty. In the context of CIDR of UID/Aadhaar numbers, the violation of privacy primarily concerns personal sensitive information such as “biological attributes” of the whole nation comprising present and future generations of citizens, including present and future soldiers, Presidents, Prime Ministers, National Security Advisors, Chief Ministers, legislators, security officials and judges. Therefore, it is deeply connected with national security. The verdict is significant because UID/Aadhaar-related schemes and the Aadhaar Act exist on the assumption that right to privacy is not a fundamental right.

In the ADM Jabalpur case, a majority of four judges of the court (with Justice H.R. Khanna dissenting) shocked the world by pronouncing that liberty is not an absolute freedom. In the now discredited verdict, the four judges (Chief Justice A.N. Ray and Justices Mirza Hameedullah Beg, Y.V. Chandrachud and P.N. Bhagwati) held: “Liberty is confined and controlled by law… It is not an abstract or absolute freedom,” incorrectly assuming that right to liberty is not an absolute right.

The court in CIDR case has observed that the verdict in ADM Jabalpur case needs to be buried “ten fathom deep, with no chance of resurrection” while overruling it. It follows from the overruled verdict that it cannot be inferred that right to privacy as part of the right to life and personal liberty is not an absolute right.

In his order as part of the right to privacy verdict, Justice Nariman cited John Stuart Mill’s thesis “On Liberty” (1859) and said, “In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.”

Despite citing Mill’s thesis that underlines the existence of individuals’ “absolute freedom” and that “his independence is, of right, absolute”, the court observes, “But this is not to say that such a right is absolute.” The court may have to revisit this proposition in the light of the authorities they have cited and in its own decisions.

Justice Nariman recalled the decision in the Peter Semayne versus Richard Gresham (1604) case in the UK to underline that “the King of England cannot enter – all his force dare not cross the threshold of the ruined tenement” of citizen’s frail and shaky house, which is his castle. It is clear from this verdict that the right to privacy has been held to be an absolute right.

It implies that no government has the right to enter the tenements of the Indians in any disguise. If it is not allowed to enter even the huts of the Indians, how can it be allowed to intrude into their body through biometric identification based on “biometric information” meaning photograph, fingerprint, iris scan or such other biological attributes as per Section 2(g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

Widely held views do not necessarily capture the truth. If the right to privacy is not deemed an absolute right, it would be tantamount to the restrictive reading of the right to life and liberty, akin to the blunder in the ADM Jabalpur case.

In his last address to India’s Constituent Assembly on November 25, 1949, Dr B.R. Ambedkar said, “I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted.” Absolute rights cannot be suspended or restricted, even during a declared state of emergency. History is replete with instances wherein a ‘ticking bomb’ or a ‘weapon of mass destruction’ situation is engineered to make public institutions blind in the face of infringement of absolute fundamental rights.

As part of the Constitution Bench, Justice Nariman concludes his order saying, “These cases are, therefore, sent back for adjudication on merits to the original Bench of three honourable Judges of this Court in light of the judgement just delivered by us.” The original Bench is now seized with the CIDR of UID/Aadhaar number-related petitions and will hear them soon to determine whether the treatment of Indians and Indian residents with the provisions of Identification of Prisoners Act safeguards or violates their constitutional rights.

Notably, the first petition against the CIDR project was filed on October 18, 2012, after almost two years of the launch of the project. After that, over two dozen cases are pending in the court, seeking scrapping of Aadhaar Act and the CIDR scheme. Rarely does it happen that public institutions do not pretend to be surprised in situations where “fundamental rights” of citizens go to the dogs “on account of some ill-conceived” delay in judgements.

Human life is a gift of privacy of our ancestors, our mother and father. Will “individuals clothed with the powers of the state” dare say to their parents that they do not have an absolute right to privacy? Can Mother India be told that she does not have the right to privacy as an absolute right? Will Mother India tell her children that they must be exposed to the public at large like animals? Who will have the heart to tell their children and grandchildren that they do not have the right to privacy as an absolute right?

The verdict in the reference case of the right of privacy follows the footprints of stalwarts like Justice Louis Brandeis, Justice Radhabinod Pal, Justice Fazl Ali, Justice Subba Rao, Justice Jagmohan Lal Sinha and Justice H R Khanna. The second verdict on the constitutionality of CIDR of UID/Aadhaar is awaited by the fourth Constitution Bench in the case that is all set to be constituted by Justice Dipal Misra, the new Chief Justice of India. The Bench will have the choice to either adopt the path of illustrious judges or to traverse the path of infamous ones.

If life and personal liberty are inalienable to human existence, it follows that the right to privacy being an intrinsic part of it is an absolute right.

The author is a public policy and legal researcher, convenor of Citizens Forum for Civil Liberties and editor of www.toxicswatch.org

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