A Summary of Day 5 of the Nine-Judge Constitution Bench Hearing
The 9-Judge Constitution Bench continued hearing the arguments of the Government of India to settle the question of whether there exists a fundamental right to privacy in India. In August 2015, the Government of India denied that a fundamental right to privacy exists in India in the ongoing Aadhaar case. After the 9-judge bench finishes hearings on the limited question of whether Indians have a fundamental right to privacy, a 5-judge bench is then expected to rule on whether the Aadhaar scheme violates such a fundamental right and will thereby decide the fate of the Aadhaar project.
On Tuesday, counsel for Maharashtra CA Sundaram continued to argue for the state that the framers of the Constitution did not include right to privacy as a fundamental right. He claimed that since the framers excluded it, the court could not now read this into the Constitution. Justice Chandrachud objected it was not fair to say that there was a categorical exclusion of privacy by the framers of the Constitution.
The Additional Solicitor General Tushar Mehta then continued on the same lines. He also repeatedly also stressed that the court should not lay down any fundamental right to privacy as only Parliament can make law on the subject. He also provided a list of countries that do not provide a fundamental right to privacy which included China, Israel and the Kingdom of Saudi Arabia. He even included countries that do not even have a Bill of Rights or any written constitution.
The ASG also submitted before court that a government committee has been constituted for framing a right to privacy. The letter is signed off by the Cyber Law and Aadhaar officer at MEITY. The Rethink Aadhaar campaign notes the composition of the committee with concern and holds a reasonable apprehension that this may be an exercise to accommodate concerns around Aadhaar.
The ASG on Tuesday again cited the PUCL versus Union of India Right to Food case and argued that Aadhaar is intended to reform the public distribution system. But the Right to Food Campaign has strongly opposed use of Aadhaar in nutrition schemes such as ration and mid day meals, and has even challenged government making Aadhaar mandatory for food rations in Delhi High Court and Karnataka High Court.
Mehta again and again termed that privacy was a "perceived" right, and one which concerns only the elite.The ASG claimed if privacy is a fundamental right, then it will have a huge impact on “good governance through Aadhaar”, and the poorest of the poor would suffer if a “perceived” right to privacy is recognised by the Hon’ble Supreme Court!
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Arguing after the ASG, Counsel for Gujarat Rakesh Dwivedi conceded that right to choose and decisional autonomy is a part of Article 21. But only that there's no confidentiality in identity information, so you cannot say no to parting with phone number etc. To this, Justice Nariman asked, can it not be said that every time one gives a mobile number, for example, is there is no reasonable expectation that it is used only for that purpose and no other purpose? This claim lead again to the question then if Aadhaar can be made mandatory at all.
Government data shows lakhs of low income households, pensioners are not able to access their food rations because of errors in Aadhaar seeding, network failures, and biometric failures, the Right to Food Campaign had said in a statement on July 24 in response to the central government’s arguments in the same Right to Privacy case.
The government is expected to complete its submissions on Wednesday.
Cover image: Hazaari Singh, 70, a resident of Kushalpura, Rajsamand, Rajasthan who stopped getting pension last October because of Aadhaar data entry errors. (Scroll.in)
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