#Aadhar — A day for privacy

A 9 judge bench of the Supreme Court will, by tomorrow afternoon, decide whether Indians have a fundamental right to privacy as per the Indian constitution. This will be a momentous day for those who are concerned about the privacy invasion through Aadhar-enabled surveillance mechanisms as well as for those who mock them saying “I am not concerned about privacy and surveillance as I have nothing to hide”. Seventy years after attaining independence, here comes a day which will decide whether you have a right to privacy.

It is important for every citizen at a time when it’s being ruled by a Government which thinks that citizens do not have a right over their body. Only the cow terrorists have.

#SayNoToAadhar

Arguments made by Gopal Subramanium in Supreme Court today for the right to privacy. (Collated from Gautam Bhatia’s live tweets) -

“The issue is simple. Whether MP Sharma and Kharak Singh still stand as good law (More details on these two cases, which had held that privacy was not a fundamental right,in the comments section). And is there a fundamental right to privacy under the Indian Constitution?

And that Article 21 was a residuary right. The basic freedoms were under 19.

This was the view taken in MP Sharma’s case. MP Sharma was a case about whether search and seizure under the code of criminal procedure. Violated the right against self incrimination. In that context, the SC said that there is no provision under the Indian Constitution like the American Fourth Amendment, and therefore no right to privacy.

Kharak Singh was a case about surveillance. There are two opinions. The majority followed Gopalan and said that there is no fundamental right to privacy under Article 21. But Justice Subba Rao said in dissent that liberty is not a residual but a full fledged right under 21. Therefore a law of surveillance must pass tests under both Article 19(1)(d) and 21.

But Justice Subba Rao also made important observations about privacy. Privacy and liberty cannot be separated. If liberty is a fundamental value of our Constitution, then privacy inheres in liberty. Liberty and privacy are not rights given to us. They pre-exist, they are natural rights.

The question is: can liberty be exercised without privacy? Can liberty be exercised without privacy with respect to fundamental rights. Privacy is a facet of liberty. This is what Justice Subba Rao said in Kharak Singh.

All the articles of the Constitution presuppose privacy. Freedom of speech, conscience, religion…Privacy is embedded in all processes of Human life and liberty. The Preamble uses two expressions. Liberty and dignity. These two words are intended to convey an inherent right recognised by the Constitution. Privacy is embedded in both.

And this is what Kharak Singh dissent says, and this is also what Gobind vs State of MP says. Liberty developed by American jurisprudence and dignity with reference to privacy by continental jurisprudence.

Privacy is not a penumbral right, or a right in the shade of other rights. Not a concomitant right. Privacy is the very essence of liberty. All human choices are an exercise of liberty. And they all presuppose privacy.

It is not only a fundamental right. But an inalienable one.

German constitutional jurisprudence cited. Not a twilight zone right. Understood as a component of free will as against determinism. The words Democratic and Republic in the Preamble. Both involve liberty of individual. Freedom of thought is also in the Preamble. Which one of it is possible without privacy which is the essence of free will?

I will now come to the conjunction of Articles 14, 19 and 21. These rights can only exist under limited government. Article 21 has been viewed as not only guaranteeing liberty but also dignity. I am not saying, “expand Article 21.” I am only saying, “recognise what is already there.”

All human choices are an exercise of liberty. And they all presuppose privacy. The human being has both an internal and an external aspect. And if he is to exercise external liberty, there must be internal privacy. The Germans knew this.

There are two other words in the preamble that are important: democratic and Republic. They too invoke the idea of liberty. The Preamble also guarantees freedom of thought. That is not possible without recognising liberty and privacy.

We didn’t need a Fourth Amendment. Even if we didn’t have a Fourth Amendment, the question is, is the Fourth Amendment the only source of privacy?

There are four aspects of privacy — spatial, decisional, informational, and the right to develop your personality. Attorney General is relying on Sharma and Kharak Singh. But ratios there have been displaced by Cooper and Maneka. After Maneka Gandhi, Articles 14, 19, 21 must be read together. Need to combine 14 19 and 21 is not only because there are overlaps.

As a result of all the judgments of the Court, there is a position that the basis of the Constitution is the individual. The citizen is given paramount protection under the Constitution. This imposes a correlative obligation upon the State.

There is a certain meaning to the qualification “fundamental” in part 3 rights. These are paramount. The corresponding obligation of the state are not mere obligations but injunctive in nature. State which is a creation of the Constitution must act according to its letter and ethos. All these are guaranteed rights. They are not concessions from the State.

Before you can even speak or express, there must be anantecedent space of liberty to frame your thoughts. That is privacy. Article 21 makes the dignity of a citizen enforceable against the State. This means all the shades of dignity including privacy.

(Reads Article 25 — freedom of conscience.) Freedom of conscience has a tremendous internal sphere. Every democratic country sanctifies domestic life… nothing is more deleterious than a calculated interference with privacy.