Aadhaar [Day-3 Session-1] Aadhaar Law Must Be Tested By The Same Standards By Which A Law Which Violates Art. 21 Is Liable To Be Tested: Shyam Divan Finds Support From Privacy Judgment

As the hearing on the string of writ petitions challenging the constitutionality of the Aadhaar Act of 2016 resumed on Tuesday, Senior Counsel Shyam Diwan drew the attention of the five-judge Constitution bench of the Supreme Court to the various aspects of the judgement dated August 24, 2017 in Justice K. S. Puttaswamy.

Summarising the voluminous judgement in two pages, Mr. Diwan postulated the points of significance-

“The judgment is declaratory of the Fundamental Right to privacy...the judges concur that the right had always existed...it is only a derivative of the right to life under Article 21 of the Constitution”

“The right to privacy is a natural right; it is inalienable and inseparable from the existence of a human being. We have placed reliance on Justice S. A. Bobde’s judgment holding the right to privacy to be a ‘necessary condition precedent to the enjoyment of any of the guarantees in Part III of the Constitution’. In respect of the three essential aspects of the right to privacy, we have referred to Justice A. M. Sapre’s judgment- protection against intrusion on physical body; informational privacy; freedom of choice”

“Then there is the subject of the functional relationship of privacy with liberty and dignity, to be safeguarded against unwanted intrusions. In this connection, we have relied on the plurality judgement of Justice D. Y. Chandrachud- ‘Although the legitimate expectation of privacy may vary from the intimate zone to the private zone and therefrom in the public arena, privacy is not lost merely because an individual is in a public place’”.

“The right to privacy is intrinsic to the concept of liberty and dignity. Justices Bobde, Chandrachud and Rohington Nariman have reiterated the same in their judgments”.

“The concept of privacy has both positive and negative aspects. While as a negative right, it confers on the citizens the freedom to enjoy protection against unwarranted state invasions, as a positive right, it obligates the State to protect its citizens privacy. In this regard, Justice S. K. Kaul’s judgment speaking of the limits to the government’s power is relevant”

“The argument that the ‘poor need no civil and political rights and are only concerned with the economic well-being’ has been appropriately dealt with in their judgments by Justices Nariman and Chandrachud”.

“That ‘informational privacy is a facet of the right to privacy, yet every act of an individual user and every site they may visit leaves electronic tracks without their knowledge’ has been discussed in the plurality judgement by Justice Chandrachud”.

 Mr Divan said the right to privacy can be infringed only if the infringement is backed by a valid law. Such a law must fulfil three conditions- justness of the law; legitimacy of the State objective; and proportionality of the encroachment”

 “For a constitutional democracy to survive, it is essential that the citizens have the undiluted assurance that the rule of law shall protect their rights and liberties against invasion by the State”, he quoted from privacy Judgment.

“The rule of law also has two aspects- one, the numerous interim orders passed by the 9 judge constitution bench categorically stating that Aadhaar shall not be used as a parameter for excluding persons from the entitlement to social schemes and other services until the matter is finally disposed off, and secondly, the introduction of the Aadhaar Act of 2016 as a money bill”

In the course of the hearing prior to the lunch hour, Mr. Diwan recited various paragraphs of the judgment- the plurality judgement by Justice Chandrachud, as well as the separate but concurring judgements of other judges-

“While it intervenes to protect legitimate state interests, the state must nevertheless put into place a robust regime that ensures the fulfilment of a three-fold requirement...The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21... Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action...Legitimacy, as a postulate, involves a value judgment. Judicial review does not re-appreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law”

From Justice Chandrachud’s judgment

“The Constitution is not merely a document signed by 284 members of the Constituent Assembly. It is a politically sacred instrument created by men and women who risked lives and sacrificed their liberties to fight alien rulers and secured freedom for our people, not only of their generation but generations to follow”

Mr. Diwan also quoted the discussion on the interrelationship of Articles 19 and 21.

From Justice S. A. Bobde’s judgement 

“...when it is claimed by rights bearers before constitutional courts, a right to privacy may be situated not only in Article 21, but also simultaneously in any of the other guarantees in Part III. In the current state of things, Articles 19(1), 20(3), 25, 28 and 29 are all rights helped up and made meaningful by the exercise of privacy. This is not an exhaustive list. Future developments in technology and social ordering may well reveal that there are yet more constitutional sites in which a privacy right inheres that are not at present evident to us.

“Privacy is always connected, whether directly or through its effect on the actions which are sought to be secured from interference, to the act of associating with others. In this sense, privacy is usually best understood as a relational right, even as its content frequently concerns the exclusion of others from one’s society”

In context of the standards of review of privacy violations, the Senior Counsel quoted, “At a minimum, since privacy is always integrated with personal liberty, the constitutionality of the law which is alleged to have invaded into a rights bearer’s privacy must be tested by the same standards by which a law which invades personal liberty under Article 21 is liable to be tested”.

From Justice R. Nariman’s judgment

“The learned Attorney General then argued that between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a fundamental right... We see no antipathy whatsoever between the rich and the poor in this context”

In context of the Fundamental Right to Privacy, Mr. Diwan quoted portions regarding judgement on anti-police regulations and how privacy exists in autonomy.

From Justice S. K. Kaul’s judgement 

“ Knowledge about a person gives a power over that person. The personal data collected is capable of effecting representations, influencing decision making processes and shaping behaviour. It can be used as a tool to exercise control over us like the ‘big brother’ State exercised. This can have a stultifying effect on the expression of dissent and difference of opinion, which no democracy can afford”

“...there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors. There is also a need for protection of such information from the State. Our Government was successful in compelling Blackberry to give to it the ability to intercept data sent over Blackberry devices. While such interception may be desirable and permissible in order to ensure national security, it cannot be unregulated”

Finally, Mr. Diwan recited the concluding parts of the judgement wherein it was held that ‘The decisions in M P Sharma and Kharak Singh which hold that the right to privacy is not protected by the Constitution stand over-ruled’.

In the hearing post lunch, Mr. Diwan shall discuss the provisions of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016.