Anuj Wankhede

A nine judge bench is hearing the crucial case of Right to Privacy in the Supreme Court (SC). The hearing has been pending for about two years now following a reference by another bench hearing a case relating to the Aadhaar program. Since that reference in 2015, a number of cases have remained stalled in SC because there is no clear definition of privacy or it’s applicability in the Constitution of India.

To be fair, the concept of privacy, it’s dimensions, misuse could never have been forseen by the Constitution writers.

Today, privacy is a rarity because data has become the new oil. In this mad rush for “big data” governments and corporates have invested heavily in gathering, storing, organizing, linking and eventually creating “Information” out of this raw data. This private information is used by various commercial companies to target prospective customers through targeted advertising for example. Governments use this data for tracking financial dealings or terrorists.

The Indian government plans to provide services through this targeted Information for which a unique ID is issued to every resident (not citizen) of India through biometric authentication (via fingerprints and/or Iris scan)

However, having seen how data given to one private company immediately lands with another company, civil society has been up in arms against collection of biometrics which can be misused for virtually everything that a person does – banking to property.

The scenario gets even worse because the government has coerced a large section of the population into enrolling for the scheme which is voluntary only on paper.

The arguments against Aadhaar are plenty. One among them is that every persons biometric data is personal property and one has a right to not share it without assigning any reason. Further, biometric identification is prone to theft and duplication. The data shared with the government is used for authentication purposes by many unregulated private entities this exposing oneself to fraud or worse – identity theft.

Various cases have reached the SC challenging Aadhaar on different fronts. Most have reached a dead end because it all boils down to the Right to Privacy – an hiterto undefined right in the Constitution.

There is reference to privacy in oblique terms through Articles 14 or 29 but they are inferred through other rights.

Hence, the need for a full constitutional bench to once and for all decide the vexed issue so that all the other cases relating to Aadhaar can be heard and dispensed. This is perhaps the biggest hearing because it will affect each and every Indian in some way or the other – regardless of socioeconomic or religious background. It’s significance is as much or perhaps even more than what the Right to Information Act did in 2005.

The beginning:

The bench for Right to Privacy hearing was brought in (rather was forced to be brought in) due to Aadhaar.

But keep in mind that the reference for the bench is NOT Aadhaar but ONLY to decide whether this right exists for Indians or not. It is not intended to pass any orders regarding Aadhaar.

SC Hearing on Right to Privacy – Day 1, July 19th 2017

Chief Justice of India J.S. Khehar, Justices Chelameswar, S.A. Bobde, RK Agarwal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer make up the nine member bench hearing the Right to Privacy matter in the Supreme Court.

The petitioners counsels G. Subramanium, S.Sorabjee and S.Divan argued well and made a good case that privacy is an innate, inborn right without which right to life, liberty and dignity as enshrined in the Constitution cannot exist.

On it’s part, A. Datar counsel for Union of India argued that there is nothing in law that gives people a blanket right to Privacy.

There the matter hinged on technical issues and interpretations of various precedents. Various cases, some going back upto half a century back were debated heatedly. The government firm in it’s stand that nothing such as privacy exists in India and that the Constitution does not recognize it.

Day 2 (July 20th. 2017)

The government of India continued to hold it’s stand on privacy citing previous judgements. Gopalamaniam, Shyam Divan, Soli Sorabjee, Arvind Datar, Anand Grover, Sajan Poovaya and Meenakshi Arora argued for the Petitioners. Point was made that the right to privacy does not come via the English Constitution (upon which the Indian Constitution is based) but from American law. It was argued that the Constitution cannot remain static and must evolve.

Examples given about how various countries have recognized the right to privacy and regulations put in place.

The submissions made were generally in line with what constitutes privacy and to what extent (and who decides the extent) Occasionally, the bench digressed from the reference issue going into the relevance of privacy in the digital world, dark web, artificial intelligence, block chain etc. (probably – and hopefully – done to foresee future problems)
The petitioners repeatedly tried explaining that privacy is presumed to exist in various articles of the Constitution even though the exact word may not have been used.
Petitioners concluded their arguments. The day seemed to have favored the Union of India because the bench had asked many questions about the very relevance of privacy in a connected and digital age.

The defense to continue on July 25.

(The scheduled hearing on 25/07/2017 was postponed due to the swearing in ceremony of the new President of India Sh. Kovind.)

Day 3 – July 26th, 2017

A day of hectic action in court. Congress leader and SC senior Kapil Sibal spoke briefly and would be part of the petitioners team. He represents the few states in India which are still ruled by the Congress party.

However, the day was for the Attorney General (AG) K.K.Venugopal to argue on behalf of the government.

Keep in mind that the government has steadfastly denied the existence of privacy in Indian jurisprudence. This will help you understand what a momentous day of hearing it was.

As usual, the AG argued that there is no privacy.

Parts of the SC debate went like this:

Attorney General – Right to privacy is part of personal liberty and it can’t be elevated to fundamental rights. Claims to privacy would destroy constitutional goals of social justice. So, it cannot be elevated to the status of a fundamental right. It is an elitist right for people in developed countries. India is a poor developing country (and hence cannot dream of such “elitist” rights)

Justice Chellameshwar incredulously asked how can right to privacy affect providing social justice? Right to privacy is not an elitist right. It is for the masses as well. For example, many women below poverty line suffer.

Justice Nariman: Don’t forget the little man’s right to privacy. EverythingEverything is not Aadhaar-centric. For example forced sterilisations during the Emergency “The victims were the poor.”


AG: You cannot say that I will not part with my photos or biometrics when there are so many people suffering from poverty, hunger etc. The World Bank has said that everyone (country) must follow Aadhaar.

CJ Khehar: We are not looking at various scenarios where privacy can be claimed.We are just deciding whether there is fundamental right or not. This 9 judge bench is not going to say anything on Aadhaar and whether fundamental rights are infringed (by it) or even in question it. The case is whether there is a fundamental right to privacy or not.

This had the AG at a loss of words.

He finally made an attempt to twist the facts and asked to be allowed to argue before the original five judge bench because fundamental rights is not an issue anymore.

Towards the end, the desperate AG asked for liberty for him to argue before smaller bench now that there is no fundamental rights claim involved (false claim)

But the CJI said “You refused to argue this before a smaller bench on the basis of larger bench judgments. That’s how this matter came here, if you had said that before smaller bench we need not have come here at all.”

Sensing all is lost, CA Sundaram (counsel to UIDAI) agreed that right to privacy is there but it’s not a fundamental right.

But by then the judges were adamant that they will decide the issue once and for all for conceptual clarity for the nation.

Now the government is trapped.

Perhaps, this is why they did not want the Supreme Court to hear this matter for so long.

Now the government cannot go back to the smaller bench till this judgment comes. It is trapped and a decision has been forced.

Either way you look at it, this has been a remarkable climb down by the government even to remotely admit that privacy exists (fundamental or otherwise)

The AG lost the way when he tried to paint the petitioners as an elite class and even in the end he was heard saying that the case is “bogus” The bench rightly took a dim view of this argument by proactively quoting instances of the poor and vulnerable facing difficulty due to lack of right to privacy.

Now having conceded some ground, the next strategy should be interesting. Just over a month ago, the previous AG had confidently told the SC that Indians do not have a right on their own body and that the government has that right. The argument had gone beyond fingerprints/Iris and suggested that the government could use bodily fluids (DNA) for profiling in future.

All those plans might remain just plans on paper if the bench decides that there is recourse to right to privacy for Indians.