Day 4 in Supreme Court: Government stubborn on denying India Right to Privacy

Anuj Wankhede

(Day four of proceedings in SC show evil intent of the government in pursuing the Aadhaar program)

July 27th 2017

Day three had been especially harsh on the defense as the bench had not been amused at the line taken by the Attorney General (AG) who had tried to paint the right to privacy as an “elitist” right fit only for developed nations. He had practically ridiculed the idea of the poor in India having this right.

Perhaps, that was the reason why the former AG Rohtagi came and sat with the UIDAI team although he did not participate in the debate. He had ably defended the Union of India about a month ago while arguing the PAN-Aadhaar linkage hearing. His presence was apparently to show firepower by the Union of India.

Day four saw the government abandon the “elitist” line altogether. Doing so was perhaps getting it bad publicity. It changed the narrative to stubbornly stick to it’s line that neither does privacy constitution, nor is there any need to bring in a constitutional amendment for it.

For a while, for some reason the issue of Aadhaar was debated. The bench had expressly said on day 3 that the terms of reference for it was limited to right of privacy and not Aadhaar.

Nevertheless, the AG was trapped by the bench a couple of times (at least)


After listening to the Attorney General go through all the security measures Incorporated in the Aadhaar Act –

Justice Bobde : You’ve done all this for privacy, right?

AG: Among other things, yes.

Justices B/N : So you recognise privacy, don’t you? You have a full chapter in the Aadhaar Act dealing with privacy. Then why are you disputing privacy?

The judges were not amused at the wanton data collection and it’s security.

Justice Chandrachud : I have no problem giving my mobile number or email to the State, because I am not a criminal. But I don’t want private parties to have it who are building their platforms on Aadhaar data.

In vain, the AG tried to compare data collection for census or voter ID with Aadhaar. He did not have much success because the bench pounced back stating that census data is very secure and private enterprises cannot easily access it. Obviously the learned judges were referring to the Aadhaar data sharing with private enterprises.

It seemed like a lost cause for the defense as the judges were immediately disputing or outright rejecting the government claims.

In all fairness, the government stood firm on it’s stand that privacy cannot be elevated to the status of a fundamental right. Their argument was that privacy is amorphous, undefined and sociological rather than jural (legal).

The judges caught on to this too and asked that if privacy is intangible and undefined then what about dignity and liberty? Life itself cannot be seen but there is right to life.

The beatings were relentless and the AG K.K. Venugopal as well as C.A. Sundaram ploughed on gamely by trying to prove that all kind of frivolous cases will come up –

AG: Can I come to court and say I have a fundamental right to watch pornography in my home?

Justice Chelameswar : Why not?

AND this:

CAS: This court will have to keep interpreting the evolving right to privacy if it’s contours are not defined.

Justice Chelameswar: So? All fundamental rights can evolve. Freedom of press was not part of freedom of speech and expression. It evolved.

Somehow the AG brought philosophy in, trying to explain that man inherently shares information quoting Socrates “one who doesn’t need society is a beast or a God.” Therefore right to be left alone is contrary to this adding that the basis of civilization is social interaction.

The latter half largely dealt with going into technical aspects of previous judgements from India and the US. Precedents like Kharak Singh, M.P. Sharma were discussed in some detail. These two are the touchstones for interpretation of the constitution.

Next hearing will be after a gap of four days on Tuesday, August 1st 2017.


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