Supreme Court rebuts government's arguments on privacy infringement

While the government referred to verdicts in two earlier cases relating to privacy and said the top court had then held that privacy was not a fundamental right, the apex court bench said the question of privacy was "irrelevant" in these cases.

A five-judge bench headed by Chief Justice Dipak Misra has been persistently asking the Centre what would be the status of the biometric details collected between 2010 and 2016 as there was no enabling law empowering the Unique Identification Authority of India (UIDAI) to collect personal details for Aadhaar registrations.

A nine-judge bench, on August 24, 2017, had held that the right to privacy was a fundamental right and laid down parameters to test State action regarding its infringement. It had held that one of the conditions was that there should be a law.

On the 26th day of the ongoing arguments, Attorney General K K Venugopal referred to the apex court verdicts in the M P Sharma (1950) and the Kharak Singh (1962) cases and said these had held that the right to privacy was not a fundamental right and hence, the Centre and the UIDAI had not violated the privacy rights while collecting biometric details between 2010 and 2016, when there was no law.

"All subsequent judgements of smaller benches, holding right to privacy as a fundamental right, were per incuriam (characterised by lack of due regard to the law)," Venugopal submitted before the bench, which also comprised justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

"Privacy was not a fundamental right when UIDAI was collecting the biometric details from the citizens," he said, adding that moreover, during 2010 to 2016, the collection of biometric details under Aadhaar scheme was voluntary and hence, nobody can claim that they were forced to part with personal details.

The top law officer said the judgements in the M P Sharma and the Kharak Singh cases were overruled in 2017 only in the Justice Puttaswamy verdict that had held the right to privacy as a fundamental right.

However, Justice Chandrachud, who had penned the main privacy verdict, differed with Venugopal and said, "we have dealt with the M P Sharma order in our judgement. There was no occasion for the bench to deal with privacy. In that case, the petitioner was asked to produce some documents... (so) the question of privacy was irrelevant in M P Sharma (case)."

The court said the M P Sharma judgement had held that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provision of Article 20(3) (no person can be forced to be a witness against himself) of the Constitution.

"The judgment does not specifically adjudicate on whether right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including

Article 21 and Article 19," it said, adding that the right to privacy was not required to be discussed in the M P Sharma verdict.

Venugopal, however, said he was not "giving up" his arguments on the issue.

At the outset, Venugopal referred the case laws to show that a particular action can be validated by a subsequent Act which has been done in the case of Aadhaar.

He also read out the Aadhaar enrolment form to buttress his stand that Aadhaar enrolment was "free and voluntary and has the provisions for taking informed consent".

Venugopal then said that the UIDAI does not part with Aadhaar details without the consent of the individual and referred to an example when the CBI had to move the Bombay high court to obtain the biometrics of an accused in connection with a rape case as the UIDAI had refused to provide biometric data.

The top law officer wound up his submissions on behalf of the Centre during the marathon hearing on a clutch of petitions challenging the validity of Aadhaar and its enabling 2016 law.

Additional Solicitor General Tushar Mehta, appearing for UIDAI, started his arguments and referred to a judgement by which the apex court had allowed the Centre to link Aadhaar with PAN cards.

"The challenge to section 139 AA of the Income Tax Act was examined by this court. Apart from right to privacy, all other aspects were considered," he said, adding that moreover, the Privacy judgement has also affirmed that right to privacy is not absolute.

He said the demographic information required under Aadhaar was already being taken since 1989 under section 139A of the Income Tax Act for obtaining the PAN. Left hand thumb impression was also taken for people who cannot sign, he contended.

To this, the bench said "There was no collection of biometrics and there was no authentication taking place at that time."

Mehta then referred to reports of SIT on black money and said that Aadhaar has helped in getting rid of fake ration and PAN cards. He will resume arguments tomorrow.