Is the govt anxious about right to privacy for fear of overburdening courts? It’s possible

Alok Prasanna Kumar July 28, 2017

Story Highlights

  • The Centre's strategy seems to be to focussed on ensuring that the Aadhar scheme and law are not affected in any way by the finding of the court
  • Attorney General K K Venugopal's defence of the Aadhar law and scheme also hinged on his attempt to compare it with the Census Act and to assure the court that the data protection provisions in the Aadhaar law were as robust as the census law
  • Necessarily, this analysis will require the judges to re-examine the law afresh and in its entire context, and not just its data protection provisions

On the fourth day of the Aadhaar-privacy hearing in the Supreme Court (SC), senior advocate C A Sundaram, arguing for the government, may have revealed the true anxieties of the government about the right to privacy. He said that a fundamental right to privacy might lead to an enormous number of cases burdening the courts as claims would be raised on its basis. Unless he had tens of lakhs of cases a year in mind, it is unlikely that whatever litigations arise from privacy claims would seriously burden the court system. Rather, the anxiety seems to be that an entire range of laws will now have to be re-examined for their impact on the right to privacy.

Rather, the anxiety seems to be that a whole range of laws will now have to be re-examined for their impact on the right to privacy

Counsels for the Centre and the State of Maharashtra doubled down on the originalist argument they began with yesterday (Thursday), against the SC locating the “right to privacy” as a fundamental right in the Constitution of India.

Attorney General K K Venugopal’s arguments continued and he was supported by senior advocate C A Sundaram in the latter part of the day, arguing for the State of Maharashtra, which agreed with the Centre that there is no fundamental right to privacy.

While Venugopal spent much time arguing about the Aadhaar law and scheme, Sundaram went in depth into American and Indian cases on the right to privacy and how to make sense of the various judgements. While many of the arguments were broadly along the same lines as those Venugopal made on Thursday, he took a harder line with regard to the place of privacy in the Constitution. This also meant that he ended up arguing that the right to life protected under Article 21 was little more than just the right to draw breath, prompting some startled reactions by the judges, who might have wondered whether they were being asked to throw 40 years of jurisprudence overboard.

He ended up arguing that the right to life protected under Article 21 was little more than just the right to draw breath, prompting some startled reactions by the judges

The strategy of the Centre and the Maharashtra government seemed to be this: while Venugopal would try to show that Aadhaar itself was not affected even if they made a finding that there was a fundamental right to privacy, Sundaram’s somewhat extreme position on how to read Article 21 of the Constitution might make the judges more amenable to Venugopal’s middle-of-the-road argument on its scope. The Centre’s strategy seems to be focused on ensuring that the Aadhar scheme and law are not affected in any way by the finding of the court.

Venugopal’s defence of the Aadhar law and scheme also hinged on his attempt to compare it with the Census Act and to assure the court that the data protection provisions in the Aadhaar law were as robust as the census law. Strictly speaking, this line of argument is somewhat tangential to the reference made, as the answer to whether the Aadhar law is constitutional will depend on the principles laid down in the context of the right to privacy.

Venugopal’s defence of the Aadhar law and scheme also hinged on his attempt to compare it with the Census Act and to assure the court that the Aadhaar law had data protection provisions as robust as the census law

Necessarily, this analysis will require the judges to re-examine the law afresh and in its entire context, and not just its data protection provisions, as there are multiple angles to this issue — ranging from whether it is just the law that’s constitutionally valid to whether other laws and notifications that make Aadhaar mandatory are invalid. This will require other benches of the SC to examine each of these angles in its own context and the impact it will have on the right to privacy of the affected people.

It is, therefore, unlikely that any legal question concerning Aadhaar will find mention in this particular judgement as and when it comes out. In any case, arguments will continue next week though they may not go beyond next Thursday.

In any case, arguments will continue next week though they may not go beyond next Thursday

As for the fear of courts being overburdened because of the potential necessity of rewriting a whole bunch of laws, that’s not necessarily a bad thing for us citizens. Imagine if the government had to justify why, on rational and reasonable grounds, it was interfering in our lives or taking away choices. Imagine if courts could limit over-broad laws and allow citizens the agency to decide how they lead their lives. Imagine if the government was forced to be just, fair and reasonable in restricting our rights to privacy.

Sounds awful, doesn’t it?

Read our earlier coverage of the hearing:

Day 1: Aadhaar-privacy Supreme Court hearing: Picture abhi baaki hai

Day 2: Aadhaar SC hearing: One judgement is not enough to define entire scope of right to privacy

Day 3: Centre tries to convince a skeptical SC that Indians don’t need fundamental right to privacy


Opinions expressed in this piece are the writer’s and do not necessarily reflect those of FactorDaily.