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Before the Constitutional bench of the Supreme Court examines this question and gives its authoritative judgment on 14th of this month so as to put a final seal on the controversy that has erupted in this country ever since the government has stirred a hornet’s nest by making Aadhar card a mandatory document for availing a host of government schemes by the citizens of this country, I would like to make some averments in this connection.
No doubt, the Apex Court has already clarified its stance to the extent that Aadhar card cannot be made mandatory in an omnibus manner other than for availing the benefits under PDS and LPG subsidies even though, in such cases also, a citizen cannot be denied benefits merely on the ground that he/she is not possessing an Aadhar.
Nevertheless, a larger question still remains to be answered whether right to privacy is a fundamental right or not which the government contends that it is not, as against the petitioner’s contention that it very much flows from Article 21 of the Constitution which guarantees to every person in India, a right to life and personal liberty. In this regard, I would like to submit some of the following propositions to drive home the conclusion that right to privacy can certainly be construed as an implied right within the meanings of Article 21 and hence, is my or for that matter, everybody’s fundamental right in this country. I would also support my contention in this regard by citing some of the past judgments of the Apex Court.
Firstly, the word ‘life’ used in this Article has never been intended to be used in its simplistic or narrow term to mean only an animal existence instead, in the more compendious terms to include a life that is lived with human dignity and anything that runs counter to this dignity is certainly a violation of this right.
This is what the Apex Court has held its view especially in the aftermath of Maneka judgment since when a new life and vigour has been infused into this right so as to make it a source of many substantitive and procedural rights for the people of this country such as adequate nutrition, shelter, livelihood and all other necessities of life that go to constitute a dignified and meaningful life. In this sense, it may be insane to argue that if someone tries to breach my privacy, my dignity of life is not hurt otherwise; it would amount to an invitation for intruding into the privacy of someone’s bedroom!
Secondly, the expression “personal liberty” used in this Article is also of widest amplitude in the sense that it does not imply merely an absence of physical restraints on the body of an individual, but covers much wider ground to encompass within its orbit an array of rights most importantly, a right to be left alone or a right not to be disturbed which essentially go to make up the personal liberty of a man. A right not to be disturbed or left alone can certainly mean that no one can intrude into the privacy of my home without my permission or consent. If for the sake of argument, it is admitted that I have voluntarily submitted myself to Aadhar enrollment and have thus surrended my right to privacy, the argument will hardly hold any ground given the fact that the fundamental rights cannot be waived. If it is accepted the other way round, then my most valuable right of personal liberty would be completely robbed of its significance by accepting an offer from the executive of a lesser punishment in lieu of getting myself convicted under an ex-post facto law. This has also been the recent view of the apex judiciary on personal liberty so much so that its content and meaning has further been expanded to embrace within it even all those individual freedoms which are guaranteed by Article 19(1) so as to constitute personal liberty in real terms. It means that any law which seeks to encroach upon my personal liberty has also to satisfy the test of Article 19 in order to be adjudged reasonable and constitutional. For the sake of clarity, I can say that the government cannot tap my telephone or place it and its contents under surveillance without any reasonable cause as it would amount not only to a violation of my right to free speech, but also my right to privacy which now has been established on a firm footing as an inherent part of Article 21. For example, the S.C held in the PUCL vs UOI-1991 case thus:
“… We have, therefore, no hesitation in holding that right to privacy is a part of right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute or reveal a right to privacy, Article 21 is automatically attracted. The said right cannot be curtailed except according to a procedure established by law….”
As underlined above, it is here where the trouble lies as the government is just going gung-ho about implementing its executive policy by seeking to link a citizen’s Aadhar for a variety of purposes no doubt, for valid and novel reasons especially, introducing transparency in the governance system. However, the vital questions that need to be answered by the government are: where is the safeguard against the misuse of a citizen’s vital personal information embedded in the Aadhar data? What if such information falls in the hands of subversive elements? What compensation a citizen will get in case his privacy is breached? Where is the law that ensures security to my personal data and so on?
Without having a privacy law in place and consequently, a reasonable procedure prescribed by it to answer the above questions, it becomes highly suspect that the government would justify its stand in the court of law! It is high time that the government should come out with a legislation…
By: Pritam Sharma ProfileResourcesReport error
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