Modi Govt to SC: China, Saudi Arabia Don’t Have Right to Privacy, Why Should Indians Have It!

Anuj Wankhede

Right to Privacy hearing in Supreme Court – Day 5, August 1, 2017:

Summary: On day 5 the respondents (government) were more aggressive in outright denying any fundamental right (FR) to privacy.

At the most, they were conceding that there is an element of privacy requirement but not enough to elevate it to a FR. Expectedly, they agreed on the issue of data protection and laws for ensuring it.

The Maharashtra ASG C.A.Sundaram was even more aggressive than even the Union of India’s Attorney General in blocking privacy as a fundamental right. He went on to submit a list of countries which do not have privacy as a (fundamental) right. Shockingly, he picked examples such as non democratic and authoritarian countries in his laundry list at one point even suggesting that India must do it because China does it! This is exactly the sort of false equivalence one would expect from the BJP government pleader because how often one heard saffron supporter on streets say “Go to Saudi and see…” type of arguments. That the government did this in the Supreme Court today was a new nadir for this government whose moral and ethical benchmarks have already been low.
The discussion went like this:

Addl. Solicitor General Mehta says that the I.T. & Aadhaar Acts have strong provisions for protection of data and privacy and submits list of China, Qatar, New Zealand, Saudi, Brazil, Israel etc as countries which do not having a constitutional right to privacy. This to bolster his claim that India does not need such a constitutional right

But he had not bargained for this –

Justice Nariman: “Even Pakistan – Islamic Republic of Pakistan – has a fundamental right to privacy.”

Justice Bobde rubbed it in: Do all these countries that you’ve mentioned have fundamental rights under the constitution?

Justice Nariman further rubbed it in and (innocently) asked what does KSA mean?

When the ASG replied ‘Kingdom’ of Saudi Arabia, he was highly amused at the selection of this authoritarian nation.

The bench further openly questioned and wondered aloud about Japan being in this list. Typically, the government did not reply.

While most of the bench seems to be siding with the petitioners, one line from Justice Nariman was ominous : “We haven’t said that we’ll repeal Aadhaar. We might balance it with right to privacy.”

Data protection part has been a gain for the petitioners. But that was expected because the government needs some laws in place so that it can shift blame onto someone else when things go awry or simply to use it as a harassment tool when inconvenient events happen.

And later there was a statement from the bench about having at least some sort of privacy law – if not a fundamental right. That keeps hopes alive of a positive outcome for the petitioners.

In any case, technically this is not an Aadhaar case but this case will be the real “Aadhaar” (foundation) on which other Aadhaar cases will be judged.

Tomorrow is the last day of the hearing with the first half for the respondents and second half for petitioners rejoinders.

Day 5 in detail:

CA Sundaram started by repeating that only Parliament has the power to introduce the right to privacy by way of a constitutional amendment if they think it’s necessary and since many aspects of privacy are already protected under Article 21 there is no need for a new FR in the name of privacy.

The judges however were not impressed with what CAS was saying and frequently interrupted or differed with him.
Justice Chelameswar asked why is it not possible to not invade privacy and still implement Aadhaar?

Justices Nariman and Chellameshwar explained that as India has signed UDHR, ICCPR it does not matter whether privacy is a FR under constitution – we have international obligations to keep.
CAS remained adamant and stuck to his line arguing that we should respect commitments made internationally but not by creating new FRs.

ASG Mehta kept up saying that Privacy cannot and should not be a FR. He conceded that data protection should be there and that a separate committee under Justice (Retd.) Sri Krishna will look into it. He said that for Aadhaar only name, fathers name and biometrics are mandatory. All other info such as email and mobile number is optional and thus is very safe (conveniently omitting the fact I that for any modification to account or for receiving OTP, mobile/email is a must) He claimed that just yesterday government has constituted a committee headed by retired justice BN Srikrishna and members from Ministry of Electronics & IT to evolve principles of data protection. He said that public interest and good governance will be seriously harmed if privacy is made a fundamental right. He got carried away and Mr. Gopal Subramanium objected saying that this is not an issue (case) of Aadhaar but of privacy. J. Nariman agreed and asked ASG to not debate Aadhaar adding that they haven’t said that they will repeal Aadhaar, might balance it with right to privacy.
But ASG Mehta was adamant and continued to cite right to food (PDS) and mobile verification where the SC has itself allowed Aadhaar.

ASG Mehta asked the court not to rely on American judgements because their notion of privacy is different from ours. For example their public display of affection.
Justice Chandrachud said it means that Indians are more private and hence we need a right to privacy more than them!

Next, ASG Dwivedi said that every claim to privacy must be tested – is it a legitimate and reasonable expectation in society? A general privacy right ought not to be grafted onto the Constitution.

CJI clarified that none of the petitioners argued that it is an absolute right. And even if it is a FR it will have limitations.

ASG saIid that every lawyer in the courtroom voluntarily rushed to get an Aadhaar card. “Now they say privacy.”

Till the bench rose, the ASG was pleading that privacy will have to be seen, evaluated and interpreted on a case to case basis.

So till tomorrow, the last day of hearing.

The author is a MUmbai-based independent researcher. Kindly send your feedback to –

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