Guest Post by MRINAL SHARMA
The Supreme Court passed an order dated 11th August 2015 declaring that it is not mandatory for the citizens to obtain Unique Identity Number popularly known as Aadhar Card. This order was passed in the light of the petitions which arose against the interim orderpassed by the Supreme Court in September 2013, which stated that ‘no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory.’ The petitioners contended that the Aadhar Card scheme involved collection of personal information of the citizens including fingerprints and iris scan, which is capable of being misused. Though the Apex Court’s order declared that the production of Aadhar card is not necessary to draw benefits vested to the citizens (except for getting PDS, kerosene and LPG distribution) butthe court didn’t answer two crucial questions involved in the matter at hand, which it referred to a larger bench of at least 5 judges to decide. One, whether the information collected under this scheme invades person’s right to privacy and two, whether right to privacy is a fundamental right? However judgment of the larger bench is still awaited, I would like to address the two issues that are posted to the larger bench.
While cases decided in 50s’s and 60’s stated that right to privacy is not a fundamental right, the succeeding case laws decided by smaller benches have established that privacy is an implicit right available under constitution which emanates from certain provisions like A. 21, right to life and personal liberty and many more. In the landmark judgment of Menaka Gandhi v. UOI, the court stated that A.21discusses variety of rights that confer to a man’s personal liberty. This wide amplitude given to personal liberty also includes privacy. If so then, in my opinion the issue whether Aadhar card intrudes an individual’s privacy should be tested under the triple test stated in Menaka Gandhi’s case, which provides for circumstances by that state may infringe citizen’spersonal liberty. An essential prerequisite to this is that state is capable of curtailing an individual’s personal liberty only through procedure established by law (like a legislation). But the Aadhar card scheme, which in my view collects essential private information, is not backed by any procedure established by law. Unlike the census or passport authorities that also intrude in private space by collecting data in regard to procedure stated in Census Act, 1948 or Passports Act, 1967 respectively, no such act bestows unto Aadhar (or UIDAI) authorities a right to collect personal data. The Aadhar authorities function under an executive order. Hence the Aadhar Scheme fails on the very fist condition of the triple test. Therefore it is correct to conclude that with respect to pertaining principles under the constitutional mandate Aadhar card scheme contravenes with right to privacy.
Coming to the second issue that asks whether right to privacy is a fundamental right, in my judgment its not but it surely should be one, subject to the referred 5-judge bench’s decision. Should it be an absolute right (meaning without state interference) or not? I think there should be some reasonable restrictions in the form of state intrusion that should be ascribed to individual’s privacy rights. I am saying so because there are some laws which probe into the vicinity of citizens homes and other personal spaces for their welfare. One such legislation is Protection of Woman from Domestic Violence Act, 2005 that invades intimate spaces for upholding rights of women who have been victims of domestic violence. But incidences like the hotel raids which happened on 6th August 2015 in Mumbai whereby police arrested consenting heterosexual adult couples from hotel rooms on grounds of public indecency make me think that what should be the level of state intrusion into an individuals private space? Can we leave this matter to be decided by courts or should there be a law which decides for the admissible state intrusion, like the Right to Privacy Bill of 2011 and 2014, which are yet to see the light of the day. I think the latter is a better idea. As there is an increase in collection and storage of multi-dimensional data (ranging from clouds to DNA fingerprinting) by government and other private bodies, there is an imminent need to outline a data collection, protection and transfer framework that guards such material like suggested by A.P. Shah Committee in 2012.
In my understanding right to privacy is no more only the right to be left alone but it is the right to be left alone in safe spaces free from any external interferences. Absolute privacy is not something that I am desirous of as a citizen of this country as there is an essential bargain between me and the state in regard with the social contract logic, as I surrender some of my rights to the state in return state protects me. But consequently I am in favour of the fact that fundamental right to privacy must exist (subject to certain specified limitations) and it’s high time that the state provides for it.
Mrinal Sharma is a student at Jindal Global Law School