The right to privacy:

It had reasoned that collection and use of personal data of citizens for Aadhaar — now a law under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 — benefits the lives of millions of poor by giving them direct access to public benefits, subsidies, education, food, health and shelter, among other basic rights. The government claimed Aadhaar was a panacea to end corruption in public distribution, money laundering, and terror funding.

The apprehension expressed by the Supreme Court about the collection and use of data was the risk of personal information falling into the hands of private players and service providers.

The Legal Eagles who Argued

Both the government and service providers collect personal data like mobile phone numbers, bank details, addresses, date of birth, sexual identities, health records, ownership of property and taxes without providing safeguards from third parties.

National programmes like Aadhaar, NATGRID, CCTNS, RSYB, DNA profiling, reproductive rights of women, privileged communications and brain mapping involve the collection of personal data, including fingerprints, iris scans, bodily samples, and their storage in electronic form. The Law Commission has recently forwarded a Bill on Human DNA profiling. All this adds to the danger of data leakage.

The Supreme Court had repeatedly asked the government whether it has plans to set up a “robust data protection mechanism”.

The government informed the Bench a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, has already been constituted on July 31, 2017, to identify “key data protection issues” and suggest a draft data protection Bill.

A battery of senior lawyers, including Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subramaniam, Shayam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi, had advanced arguments in favor and against the inclusion of the right to privacy as a fundamental right.

Petitions questioned the violation of privacy in the collection of information under Aadhaar.

Before the nine-judge bench was set up, a five-judge constitution bench headed by chief justice J. S. Khehar earlier said that the larger bench would examine the correctness of the two judgments delivered in the cases of Kharak Singh and M.

  1. Sharma in which it was held that right to privacy was not a fundamental right.

Crucially, this bench examined whether the two earlier rulings were correct expressions of the constitution.

The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.

A nine-judge Constitution Bench of the Supreme Court on August 24 ruled that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.

Reading out the common conclusion arrived at by the nine-judge Bench, Chief Justice of India J.S. Khehar said the court had overruled its own eight-judge Bench and six-judge Bench judgments of M.P. Sharma and Kharak Singh cases delivered in 1954 and 1961, respectively, that privacy is not protected under the Constitution.

Supreme Court verdict on Right to Privacy

The nine-judge Bench comprised, besides Chief Justice Khehar, Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton F. Nariman, Abhay Manohar Sapre, D.Y. Chandrachud and Sanjay Kishan Kaul.

The Bench was formed as the 1954 and 1961 judgments had dominated the judicial dialogue on privacy since Independence. Both judgments had concluded that privacy was not a fundamental or ‘guaranteed’ right. To overcome these two precedents, a numerically superior Bench of nine judges was required.

A five-judge Bench led by Chief Justice Khehar had referred the question whether privacy is a fundamental right or not to the nine-judge Bench.

The Union government had argued that privacy is a common law right.

International significance

The nine-judge Bench’s judgment gains international significance as privacy enjoys a robust legal framework internationally, though India has remained circumspect.

The judgment will have a crucial bearing on the government’s Aadhaar scheme that collects personal details, biometrics to identify beneficiaries for accessing social benefits and government welfare scheme.

A bunch of petitions was filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy, informational self-determination, and bodily integrity.

The petitioners argued that Aadhaar enrolment was the means to a “Totalitarian State” and an open invitation for personal data leakage.

The government had countered that the right to privacy of an “elite few” is submissive to the right of the masses to lead a dignified life in a developing country. It said informational privacy does not exist before compelling State interests and is not an absolute right

“UN Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory had expressly recognised privacy as a fundamental and inalienable right and this constitutional bench just had to recognised privacy as a fundamental and inalienable right and this constitutional bench just had to read it in,” Justice Nariman added.

LGBT won’t be denied this right just because they are in minority

The Supreme Court held out hope for the lesbian, gay, bisexual and transgender (LGBT) community in a landmark judgment on Thursday, saying right to privacy cannot be denied to them merely because they are a “minuscule fraction” of India’s 1.25 billion people.

“Sexual orientation is an essential attribute of privacy,” the court said, virtually reopening the 2013 judgment on gay rights.

“Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual … The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Article 14, 15 and 21 of the Constitution,” it added.

The court stopped short of giving a ruling on Section 377 of the Indian Penal Code that criminalizes sex between consenting gay adults, saying it “would leave the constitutional validity to be decided in an appropriate proceeding”.

In July 2009, the Delhi high court read down Section 377. But the Supreme Court reversed the verdict and re-criminalized gay sex in December 2013.

The LGBT community across India welcomed the top court’s privacy ruling on Thursday, saying it will boost their fight against the 2013 judgment — popularly known as the Naz verdict after Naz Foundation, an NGO, which filed the petition.

The court has left it to the Parliament to scrap Section 377 that bans “unnatural sex”.

“I welcome this judgment. It is a relief to hear sexuality spoken of in the language of rights and dignity,” said Gautam Bhan, professor, activist and one of the original petitioners against Section 377.

Lawyers believe Thursday’s verdict will help the curative petition against the 2013 judgment. “I don’t think Koushal will be able to withstand this challenge in the curative petition,” senior advocate Anand Grover said.

Besides gay rights, the privacy verdict could affect powers of police to arbitrarily conduct search-and-seize operations under Maharashtra rules banning cow slaughter and beef.

The Bombay high court had struck down this privilege to police and the Maharashtra government has challenged the order in the Supreme Court.

The intrusive two-finger medical test conducted on rape survivors too could fall foul of the privacy verdict. Also efforts to ban adult pornography might hit a roadblock.

The DNA profiling bill is another subject that might get influenced by the privacy judgment.

The biggest concern is that the bill has left the task of defining privacy and security safeguards to regulations, which include appropriate use of DNA data and timely removal of obsolete or inaccurate information.

False DNA matches can spark privacy concerns. Now that the top court upheld the right to privacy, chances of the bill being shelved are high, unless all safety regulations are taken into account.

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