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SC will hear Right to Privacy Case Today

Because of the Swearing Ceremony of His Excellency the President of India, the Aadhaar hearing shall resume on 26th July.

Another date of the Aadhaar hearing has finally arrived today before the Supreme Court bench which includes whether Aadhaar violates the right to privacy and if the Right to privacy is a fundamental right under Article 21 of Indian Constitution.
Earlier on July 12, a five judge bench was set up comprising Justices J. Chelameswar, S. A. Bobde, D. Y. Chandrachud and S. Abdul Nazeer to decide on the Aadhaar related matters to hear the petitioners who challenged the constitutionality of the Aadhaar project primarily against the personal details of the citizens to access welfare and benefits under the scheme is a violation of the right to privacy which is guaranteed under Article 21 of Indian Constitution.

Later on 18th July, the decision on citizens’ right to privacy was passed on to the nine judge headed by the Chief Justice Jagdish Singh Khehar, and comprises of Justice J Chelameshwar, Justice S A Bobde, Justice RK Agarwal,Justice Rohinton Fali Nariman,Justice Abhay Manohar Sapre,Justice D Y Chandrachud , Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer to decide on the issue as to whether the fundamental rights, described under Part III of the Constitution of India, also include the right to privacy.

Note: [The nine-Judge Bench deals with limited issue of right to privacy and matters challenging the Aadhaar scheme would be referred back to a smaller bench].

Another petition was filed in the court against the data sharing which includes personal photographs, messages etc by the users in social media platforms such as Facebook and WhatsApp, which in turn violates citizen’s right to privacy. Defending that the senior advocate and Counsel for WhatsApp and Facebook Senior Counsel Kapil Sibbal argues that information provided WhatsApp  is secured and kept end-end encrypted and cannot be read even by the company and hence the privacy by the platform is not violated.

Observing the two cases, we see the other side of the Centre where it contradicts its own stand. On one hand it says that privacy of an individual is not a fundamental right whereas, in WhatsApp case they argues that a person’s Right to Life under Article 21(Right to Life and Liberty) of the Constitution would need to be regulated.

According to the Supreme Court, if Private companies can have all the personal information of the user why not the Government? To which petitioners’ lawyer, Sajan Povayya says

that there is a contract with the private parties; any breach of the contract one can sue them. But no such contract takes place with the Government.

As today is the hearing for the same case, the matter needs to be settled as soon as possible as it questions the right to privacy of its citizens. Also it would be interesting to see the response of Government where in one hand it wants to protect the data of individuals collected by private entities and on the other hand it denies the same under the Aadhaar scheme.

Aadhaar Privacy Petition – Next hearing in SC on 25th July

Aadhaar card started out as simple identity card provided to all Indians with the motive to benefit marginalized sections of society who have no formal proof of identity and hence experience difficulties in accessing various welfare schemes. But slowly it turned into a card mandatory for receiving all/any benefits from the government from buying cooking gas to demanding information under the Right to Information Act (RTI).

Recently, it got into light with a question to invasion of privacy. The registration mandates all the personal information of an individual along with the attestation via thumb prints and iris scans.

In August 2015, the Supreme Court has mentioned the question of constitutional validity of the fundamental right to privacy to a larger bench.

On July 12, 5-Judge bench was also set up to manage the Aadhaar related matters to hear the petitioners who challenged the constitutionality of the Aadhaar project primarily against the biometric details of the citizens to access welfare and benefits under the scheme is a violation of the right to privacy. The 5-judge bench is set up to decide the future of Aadhaar which has become the pillar of government welfare programmes, the tax administration network and online financial transactions.

The five judge bench comprising Justices J. Chelameswar, S. A. Bobde, D. Y. Chandrachud and S. Abdul Nazeer – said that the nine-judge bench would commence hearing on Wednesday and would decide on the issue as to whether the fundamental rights, described under Part III of the Constitution of India, also include the right to privacy.

The order came as a result of a batch of petitions challenging the constitutional validity of the Aadhaar scheme.

The petitions were referred to a larger bench in 2015 when then attorney general Mukul Rohatgi had referred to the inconsistencies in the past apex court verdicts and said that the issue whether right to privacy was a fundamental right or not, needed to be settled first.

According to legal experts, if the nine judges decide that privacy is a fundamental right, the issue will then be thrown back to the current five-judge bench which will define the contours and limitations of this right to privacy and consequently decide on the validity of Aadhaar.

The Supreme Court on 18th July sets up a 9 judge bench headed by Chief Justice Jagdish Singh Khehar, and comprises of Justice J Chelameshwar, Justice S A Bobde, Justice RK Agarwal,Justice Rohinton Fali Nariman,Justice Abhay Manohar Sapre,Justice D Y Chandrachud,Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer to examine whether right to privacy is a fundamental right under Constitution. [The nine-Judge Bench deals with limited issue of right to privacy and matters challenging the Aadhaar scheme would be referred back to a smaller bench].

Before a nine-judge bench of the SC hearing the validity of Aadhaar, challenged on the grounds of violating the right to privacy, attorney general K K Venugopal had cited two SC judgments–one by an eight judge bench in 1954 and another by a six-judge bench in 1962–to argue that privacy was a common law right and petitioners could not complain about breach of privacy due to collection of biometric data of citizens for Aadhaar.

According to Supreme Court, if private companies like Apple can have the personal data of the users why not the Government? Justice DY Chandrachud also stated that 99% of the people are unconcerned and not aware of the purpose for which data is collected. He also argues that citizens are also disclosing huge amount of information virtually about their private and personal lives.

To which petitioners lawyer, Sajan Povayya says that

I have a contract with private parties – if they breach it, I can sue them. But there is no contract with the government.

Gopal Subramanium a senior lawyer for the petitioner says our constitution gives us liberty to live life which also includes freedom from encroachment on his or her privacy. But according to the Supreme Court the right to privacy is not absolute hence, the legislature cannot be stopped from imposing reasonable restrictions.

The Aadhaar card has been mandated for a number of services such as the opening of bank accounts, the payment of taxes or any payment of public money.

The final call on the matter is still on hold. The next hearing will be on July 25th.

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