The government told the Supreme Court on Wednesday privacy was not a fundamental right under the Constitution and couldn’t be invoked to scrap the Aadhaar scheme that has run into controversy over its collection of troves of personal data.
Attorney general Mukul Rohatgi told an SC bench the judiciary didn’t have a uniform view on the matter and urged them to refer the petitions challenging Aadhaar to a larger Constitution bench.
“Constitution makers did not intend to make right to privacy a fundamental right,” Rohatgi told the bench, during the hearing of petitions opposing a government order that made the 12-number unique identification number mandatory, especially for seeking government welfare benefits.
The A-G said two top court verdicts in the 1950s — delivered by large benches comprising eight and six judges respectively — supported his stance but the apex judiciary’s views subsequently underwent a change during the course of 25 decisions delivered by smaller benches.
Through these judgments, the right to privacy came to be recognised as a fundamental right under Article 21 that guarantees the right to life and personal liberty, he said.
The identification scheme has been promoted by Prime Minister Narendra Modi to check subsidy leakages and ensure proper monitoring of schemes but the petitioners argued no law empowered the Unique Identification Authority of India to collect biometric details.
The scheme infringed on their right to privacy as their particulars could be used by any external agency, they said.
But Rohatgi told the court it should balance the petitioner’s rights against those of the roughly 700 million people, whose subsidies and welfare benefits were dependent on the “fool-proof scheme.”
He said any further hearing in the case would impact the issuance of driving licenses, passports, National Population Register and said Aadhaar was necessary as the country was battling an illegal immigrant problem.
But the petitioner’s counsel and senior advocate Shyam Divan countered the argument and said privacy was core to a civilisation. “It is a pillar of society,” he told a bench headed by justice J Chelameswar.
The ambitious Aadhaar scheme has been dogged by controversies since it was inaugurated by then UPA government. The SC in March ruled that the 12-digit number couldn’t be made mandatory for government entitlements but a number of states have made it compulsory for employment under the rural jobs scheme and electoral enrolment.
A committee set up by the Centre in 2000 recommended privacy be made a fundamental right subject to certain restrictions.
In 2011, a group of experts set up by the Planning Commission to explore loopholes in privacy protection laws recommended the government conduct an in-depth analysis of its programmes to find out impact on privacy, which was to be incorporated into a proposed bill on the issue.