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Justice Nariman's finest order on privacy

Written By mediavigil on Wednesday, August 11, 2021 | 6:35 AM

 Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. Nariman's order as part of right to privacy verdict has totally demolished this flawed assumption, says Gopal Krishna.

Thomas Jefferson, the third President of the United States, had written in 1787 that 'if once people become inattentive to the public affairs, you and I, Congress and assemblies, judges and governors shall become wolves'.

In the concluding paragraph of his 122-page-long order as part of the landmark verdict of the nine-judge Constitution Bench of the Supreme on Right to Privacy, Justice R F Nariman wrote, 'This reference is answered by stating that the inalienable Fundamental Right to Privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India'.

In the opening paragraph of his order, Justice Nariman states, 'A three-judge bench of this court was dealing with a scheme propounded by the government of India popularly known as the Aadhaar card scheme. Under the said scheme, the government of India collects and compiles both demographic and biometric data of the residents of this country to be used for various purposes.

'One of the grounds of attack on the said scheme is that the very collection of such data is violative of the 'Right to Privacy'. Aadhaar scheme refers to the 21st century version of Panopticon called Central Identities Data Repository of Unique Identification (UID)/Aadhaar numbers which is an automatic identification and surveillance project.'

Justice Nariman recalled the decision in the Peter Semayne v Richard Gresham (1604) in the United Kingdom to underline that 'every man's home is his castle and fortress for his defence against injury and violence, as well as for his repose'.

His cited decision of William Pitt, the Elder which reads: 'The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter, all his force dare not cross the threshold of the ruined tenement.'

If they are not allowed by the Constitution to enter even the huts of Indians, how can they or their government be allowed to intrude into their body through biometric identification based on 'biometric information', meaning photograph, finger-prints, iris scan, or such other biological attributes' as per Section 2 (g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016?

All the concerned 'individuals clothed with the powers of the State' are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

Justice Nariman records the argument of Attorney General K K Venugopal wherein he submitted 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'.

Having done so, he observes, 'We do not find any conflict between the Right to Life and the Right to Personal Liberty…The Right to Personal Liberty being an extension of the Right to Life.'

Justice Nariman wrote, 'We see no antipathy whatsoever between the rich and the poor in this context. It seems to us that this argument is made through the prism of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, by which the Aadhaar card is the means to see that various beneficial schemes of the government filter down to persons for whom such schemes are intended.'

He rejects the attorney general's argument, observing that 'the Right to Privacy would be found, inter alia, in Article 21 in both 'life' and 'personal liberty' by rich and poor alike primarily against state action'.

The contentions of the state of Gujarat saying 'if information is already in the public domain and has been parted with, there is no privacy right' had also been debunked.

It is quite sad and unbecoming of the state government to have attempted to mislead the court by bringing an outdated test of 'reasonable expectation of privacy' from United States Supreme Court.

Justice Nariman's order notes that this submission draws from the judgment in Katz v United States (1967) and Miller v United States (1976), which are outdated because US Congress enacted Right to Financial Privacy Act, 1978 to neutralise it, nipping an alarming tendency of attaching privacy in relation to property and not to the person.

The Gujarat government failed to inform the court that in Minnesota v Carter (1998), the US Supreme Court found the Katz test 'notoriously unhelpful test'.

Justice Scalia criticised the application of this test saying, 'In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan's separate concurrence in Katz case) is that, unsurprisingly, those 'actual (subjective) expectation[s] of privacy that society is prepared to recognise as reasonable', bear an uncanny resemblance to those expectations of privacy that this court considers reasonable.'

'This self-indulgent test provision does not guarantee some generalised 'right of privacy' and leave it to this court to determine which particular manifestations of the value of privacy 'society is prepared to recognise as 'reasonable',' he said.

Our Supreme Court has referred to criticism of the proposition that if there is voluntary parting of information there is no Right to Privacy in District Registrar & Collector, Hyderabad v Canara Bank (2005) with approval.

Justice Nariman recalls the significance of the dissenting judgment by Justice Louis Brandeis in Olmstead v United States (1928). Justice Brandeis held that 'in the application of a constitution, our contemplation cannot be only of what has been but of what may be'.

A Constitution Bench is now seized with the Aadhaar Act-related matter. The court must step in before the neglected spark of biometric identification burns the house.

'The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions,' Justice Louis Brandeis had said.

His view was held as the correct view of the law in 1967.

Citing James Otis, a late 18th century jurist, Justice Brandeis cautioned against placing 'the liberty of every man in the hands of every petty officer' even in the face of much lesser intrusions than wiretapping. Such intrusions are 'subversive of all the comforts of society' in the words of Lord Camden, Chief Justice of the King's Bench in early 18th century.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries. It cannot be contended that the Indian Constitution does not afford protection against such invasions of individual security through CIDR based mass surveillance.

Justice Nariman's order recalled the seminal judgment of Justice K K Mathew in Gobind v State of Madhya Pradesh (1975) wherein he observed, 'Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.'

He added, 'Of course, privacy primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty.'

In the context, of CIDR of Aadhaar numbers violation of privacy primarily concerns the personal sensitive information of the whole nation comprising of present and future generation of citizens including present and future soldiers, Presidents, prime ministers, national security advisors, chief ministers, legislators, security officials and judges. Therefore, it is deeply connected with national security.

The attorney general and additional solicitor general, in particular, argued that given the fact that 'our statutes are replete with a recognition of the Right to Privacy' there is no need to recognise it as a Fundamental Right.

Additional Solicitor General Tushar Mehta cited 'provisions of the Right to Information Act, 2005, the Indian Easements Act, 1882, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the Bankers’ Books Evidence Act, 1891, the Credit Information Companies (Regulation) Act, 2005, the Public Financial Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment and Settlement Systems Act, 2007, the Income Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the Census Act, 1948, the Collection of Statistics Act, 2008, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act, 2012 and the Information Technology Act, 2000' to contend that since these statutes already protect the privacy rights of individuals, it is unnecessary to read a Fundamental Right of Privacy into Part III of the Constitution.

Justice Nariman rejected their argument saying, 'Statutory law can be made and also unmade by a simple parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove.

'Fundamental Rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.'

The observations of Justice Nariman, Dr Ambedkar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

He observed, 'The recognition of such right in the Fundamental Rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.'

According to him, in the Indian context, a Fundamental Right to Privacy would cover at least three aspects, namely: Privacy that involves the person, ie when there is some invasion by the state of a person’s rights relatable to his physical body, such as the right to move freely; Informational privacy which does not deal with a person's body but deals with a person's mind, and therefore, recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.'

And, lastly, 'the privacy of choice, which protects an individual’s autonomy over fundamental personal choices'.

He cites John Stuart Mill's thesis On Liberty (1859) saying, 'In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.'

Mill's cited observation contends that the appropriate region of human liberty comprises, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.

Despite citing Mill's thesis that underlines the existence of individuals' 'absolute freedom' and 'his independence is, of right, absolute', Justice Nariman observes, 'But this is not to say that such a right is absolute.'

He may have to revisit this proposition in the light of the authorities he has cited and his own decisions.

Justice Nariman overruled the majority judgment in Additional District Magistrate, Jabalpur v Shivkant Shukla (1976) -- wherein a Constitution Bench of the Supreme Court 'arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether' --  citing previous verdict and Seervai's Constitutional Law of India.

In the ADM Jabalpur case, the majority comprised of then Chief Justice A N Ray and Justices Mirza Hameedullah Beg, Y V Chandrachud and P N Bhagwati, and  Justice H R Khanna was in minority.

Justice Nariman records that 'the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered'.

'By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21,' he said.

Taking cognisance of the constitutional amendment, he observes, 'On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.'

In the ADM Jabalpur case, the majority held that: 'Liberty is confined and controlled by law, whether common law or statute. It is in the words of (Edmund) Burke a regulated freedom. It is not an abstract or absolute freedom' incorrectly assuming that Constitution was the sole repository of the right to life and liberty.

Given the fact that this verdict has been overruled, how can it be inferred that the Right to Privacy, as part of Right to Life and Personal Liberty, is not an absolute right?

Mill’s thesis and Justice Nariman’s observations reminds one of what Dr B R Ambedkar had said in his last address to India's Constituent Assembly on November 25, 1949.

Dr Ambedkar said, "I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted."

He recalled the words of Thomas Jefferson, saying, "We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country."

Citing Jefferson, Ambedkar contended that the 'State cannot make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living'.

It emerges that the Aadhaar case is deeply linked with the verdict in the ADM Jabalpur case and the Constitution's 44th Amendment, because the CIDR entails linking Aadhaar number with essential services and citizens' entitlements, benefits and services, making the right to have rights, including right to life and personal liberty, dependent on biometric data.

As per Section 2(r) of the Aadhaar Act 2016 'records of entitlement' means records of benefits, subsidies or services provided to, or availed by, any individual under any programme.

As per Section 2(f) of the Act 'benefit' means any advantage, gift, reward, relief, or payment, in cash or kind, provided to an individual or a group of individuals.

As per its Section 2(w) 'service' means any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals. As per Section 2(x) 'subsidy' means any form of aid, support, grant, subvention, or appropriation, in cash or kind, to an individual or a group of individuals.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries.

If these provisions are read with Section 23(2)(g), it is clear that powers and functions of Unique Identification Authority of India and ministry of electronics and information technology includes the power of 'omitting and deactivating of an Aadhaar number and information relating thereto in such manner as may be specified by regulations' through subordinate legislation as and when they deem it appropriate.

It means that the Aadhaar Act is worse than the overruled verdict in ADM Jabalpur case because it has empowered the central government to cause civil death of anyone it does not like and has deprived citizens the right to compliant as was done by ADM Jabalpur in pursuance of the Presidential Order dated June 27, 1975 under Article 359(1).

As per Section 47 (1) of the Aadhaar Act, 'No court shall take cognisance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.'

This takes away the right of the 'residents' and citizens to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution.

Aadhaar Act turns every 'resident' and citizen of India into guinea pigs in the laboratory of foreign biometric technology companies by empowering the UIDAI for 'promoting research and development for advancement in biometrics and related areas, including usage of Aadhaar numbers through appropriate mechanisms'.

Against such a backdrop, the observations of Justice Nariman, Dr Ambedkar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

In fact, Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. The court's verdict has totally demolished this flawed assumption.

Dr Ambedkar cites Mill to caution 'all who are interested in the maintenance of democracy', not 'to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions'.

It is an argument which is relevant because it is evident that gullible citizens are being made to 'lay their liberties at the feet of' the owners of a great database of Aadhaar numbers.

The court must step in before the neglected spark of biometric identification burns the house.

In his order Justice Nariman has recorded how the A-G ended up contending that 'the Right to Privacy cannot be claimed when most of the aspects which are sought to be protected by such right are already in the public domain and the information in question has already been parted with by citizens', for advancing the argument that collection of personal sensitive information like biometric data for the CIDR is a non-issue.

The order also records the uncivil act of Centre for Civil Society, an NGO, in contending that the Right to Privacy 'ought not to be elevated in all its aspects to the level of a Fundamental Right' for posterity.

Notably, Venugopal had represented this NGO in this very case on an earlier occasion before becoming the A-G.

He has also recorded that states of Kerala, Karnataka, West Bengal, Punjab and Puducherry broadly supported the petitioners who were seeking scrapping of Aadhaar because it violates Right to Privacy.

Justice Nariman concludes his order saying, 'The later judgments of this court recognising privacy as a Fundamental Right do not need to be revisited. These cases are, therefore, sent back for adjudication on merits to the original bench of three honourable judges of this court in light of the judgment just delivered by us.'

The Constitution Bench is now seized with the CIDR-related petitions and is likely to hear them in the first week of November. It must be remembered that the first petition against the CIDR project was filed on October 18, 2012, after almost two years of the launch of the project.

Subsequently, over two dozen cases and more than half a dozen review petitions were filed in the Supreme Court seeking scrapping of the Aadhaar Act.

Rarely does it happen that public institutions do not pretend to be surprised in situations where 'Fundamental Rights' of citizens go to the dogs 'on account of some ill-conceived' delay in judgments.

The verdict in the reference case of Right of Privacy in the CIDR matter reveals that our judges have not become wolves because at least some people and few lawyers remain attentive to the public affairs.

This decision follows the footprints of stalwarts like Justice Louis Brandeis, Justice Radhabinod Pal, Justice Fazl Ali, Justice Subba Rao, Justice Jagmohan Lal Sinha and Justice H R Khanna.

Academia and citizenry does not hold similar opinion about those who gave verdicts in Union Carbide Corporation v Union of India and in ADM Jabalpur v Shivkant Shukla cases.

When a list of good and not so good judges will be prepared, their names will feature prominently. Their own questionable verdicts have emerged as an exercise in self-indictment. Post retirement statements of self pity will be of no help.

All the concerned 'individuals clothed with the powers of the State' are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

All the judges who adjudicate on issues of life and death remain judges only till the time they deliver their judgment. After their decision, it is they and their verdict which remains under scrutiny. They get the opportunity to adjudicate once but they and their decisions are judged forever.


Gopal Krishna is a law and public policy researcher, convener, Citizens Forum for Civil Liberties and editor of www.toxicswatch.org. 

He had appeared before the Parliamentary Standing Committee on Finance that examined and trashed the Aadhaar Bill, 2010, which was reshaped and introduced in Rajya Sabha where it remained pending till March 3, 2016. It was then withdrawn and supposedly a new Bill was introduced as a Money Bill and got enacted act Aadhaar Act 2016 amidst vociferous objection by the Rajya Sabha. It faces a constitutional challenge before the Supreme Court's 7-judge bench.

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