Adhar Card vs Right to Privacy

Article 21 of the Constitution states that: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Ever since the landmark pronouncement of the Supreme Court in Maneka Gandhi case, article 21, has been on its way to emerge as the Indian version of the American concept of due process of law. Being so, this valuable right has since then become a source of many substantive rights as well as procedural safeguards to the people of this country.

Insofar as it being a source of many substantive rights is concerned, right to privacy can be cited as one example which the unanimous decision of the SC Constitution bench of 9 judges declared recently.
In order to understand the rationale behind the Supreme Court’s judgment deducing right to privacy as an inherent adjunct of right to life and personal liberty under Article 21, we need to know what interpretation that the expressions used in Article 21 actually been articulated by the 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 about especially in the aftermath of Maneka judgment since when a new life and vigor 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! If someone’s reputation is a facet of his right to life under Article 21, how can privacy be not covered within the ambit of right to life and hence, Article 21. Similarly, the telephonic conversation of an innocent citizen has been protected by the courts against wrongful or high handed interference by tapping of the conversation by the police, how right to privacy can be not implied from right to life?.

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 of. 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, we 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. Before the present verdict was pronounced by the Court on Privacy, the Court has had already upheld it 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….”

In a nutshell, it may be said that Article 21 and Article 19 should be read together so as to offer a new lease of life to right to life and personal liberty. The grounds on which various individual freedoms under Article 19 can be restricted may also be applied to Article 21 provided the law provides a set procedure which is just, fair and reasonable tantamount to American concept of due process. This remains to be seen whether, the procedure laid down under Aadhar Act under challenge before the Court carry all such attributes.

By: Pritam Sharma