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Right to privacy: How far can a citizen invoke autonomy of identity on grounds of privacy, asks SC

By Ians English
Google Oneindia News

New Delhi, July 20: The apex court, which has ventured to examine whether right to privacy can be held as a fundamental right wanted to know about the tests which could be used to regulate and enforce privacy right when there could be 'legitimate or illegitimate' use of data.

Supreme Court of India

The nine-judge constitution bench headed by Chief Justice Jagdish Singh Khehar made this observation on the second day of the hearing on the right to privacy case.

The court was told that privacy was integral to right to dignity and resided in Article 21. The court asked how far a citizen can say that he has autonomy of identity and claim anonymity.

The poser came as petitioners asserted that their right to privacy was fundamental and told the bench that the "contours of right to privacy is multifaceted and thus could not be defined, it would depend on case to case basis".

The second day of the hearing saw the bench being taken through various judicial pronouncements - both in India and abroad, the International Covenant on Civil and Political Rights (ICCPR), Universal Declaration of Human Rights (UDHR) to contend that right to privacy was an inalienable right and inseparable from dignity.

Besides Chief Justice Khehar, the nine-judge bench also comprises Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

The senior counsel Arvind Datar, Anand Grover, Sajan Poovayya and Meenakshi Arora appeared for the petitioners seeking pronouncement that privacy was a fundamental right.

The matter is being heard by the constitution bench in the wake of challenge to the Aadhaar scheme on the grounds of its being violative of the right to privacy.
The hearing saw Justice Chandrachud asking how far the citizens would invoke the autonomy of identity to remain in anonymity and to what extent.

Justice Chandrachud asked that at the time of applying for passport, the passport issuing authority asks your father's name, mother's name, spouse's name. Similarly in the case of applying for the passport of an adopted child, the authorities insist upon the identity of biological parents of the child.

As Justice Chandrachud asked how far can a citizen say that he has a right to anonymity and refuse information for a cause which is not illegal and illegitimate, Grover responded saying "It has to be a compelling State necessity".

At this Justice Nariman said the ultimate test is if the State interest is compelling to call for the information or the information being sought is arbitrary and excessive.

Chief Justice Khehar said, "What you are asked to disclose, if it interferes or bothers you, you can invoke privacy. Once it comes to a stage where it bothers you, then State can say that it is not legitimate."

On the debate where the right to privacy could be located in the fundamental rights, senior counsel Sajan Poovayya linked the tracing of right to privacy in Article 14, Article 19 and Article 21 and other provisions of the Constitution with the planetary positions in a horoscope for understanding good or bad times.

Saying that the "collection of data itself is a breach of right to privacy unless it is covered by law", Poovayya said, "I have a digital identity and it is incumbent upon the State to protect my digital identity. Can the top court permit the government to collect my personal information without an oversight?"

Poovayya said the declaration by the court that privacy is a fundamental right would be the first step for ensuring that there is an oversight ensuring protection of the personal information of the citizens.

He said that "surrendering of information to someone does not mean surrendering the information to all".

"It does not mean that merely because my personal information is in public domain, it takes away my right to privacy or I can't assert right to privacy on that personal information," Poovayya told the bench.

Tracing the protection of right to privacy in the Telegraph Act of 1885 and Postal law of 1890, Poovayya said that if the nine-judge bench had sat say 15 years ago and had decided that the right to privacy was fundamental, then the government would not have dared to collect personal information the way it did in the case of Aadhaar.

Earlier, Grover had told the court that the Constitution is a living document so "its interpretation must be in accord with the passage of time and developments in law".


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