BJP Hit: SC Verdict for Privacy Opens Aadhar, DNA Profiling, LGBT Rights,Social Media Use to Review

NEW DELHI: The Supreme Court verdict upholding the individuals fundamental right to privacy is yet another major setback for the government that had, in its arguments, maintained that even if privacy was assumed to be a fundamental right it could not reach a status higher than the right to food ensured through Aadhar for 270 million impoverished people.

The court ruled today, in a landmark judgement that is being welcomed across the country that the Right to Privacy is intrinsic to the Right to Life granted under Article 21 of the Constitution. The court has not ruled on the validity of Aadhar but this will be looked at from the aspect of privacy as a fundamental right by a five member bench of the apex court.

Lawyer Prashant Bhushan said, "The judgment read out so far only says that the right to privacy is a fundamental right, protected by Article 21 (of the constitution on the right to life and personal liberty)."

"Any law, like the Aadhar Act or any other law, which seeks to restrict the right to privacy will have to be tested on the touchstone of Article 21," he added.

Significantly, the government had evaded the issue in its responses to the Supreme Court during the hearings. The nine judge nine judge Constitution Bench led by Chief Justice JS Khehar had tried to elicit a direct yes or no response from the Attorney General KK Venugopal to the limited question before the court:: whether or not privacy enjoyed the status of a fundamental right.

The attorney general refused to give a direct reply and as reported at the time his reply remained, "Privacy, even if assumed to be a fundamental right, consists of a large number of subspecies. Each and every subspecies of privacy cannot be elevated to the status of a fundamental right."

Venugopal told the bench--Justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, Sanjay K Kaul and S Abdul Nazeer-- that the right to privacy should not be approached as a homogeneous right”The argument of the petitioners is that the right to privacy is part of right to life. But even right to life is not absolute as the Constitution permits depriving a person of right to life through due procedure of law," Venugopal said.

"It will be constitutionally impermissible to declare each and every instance of privacy as a fundamental right, whatever be the extent of its violation, erosion or encroachment. Privacy has varied connotations when examined from different aspects of liberties.If the Supreme Court wants to declare it as a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy," he added.

The verdict today has been applauded by legal experts and political parties outside the BJP. Congress leader and lawyer Salman Khurshid spoke of the far reaching implications of this verdict for Indian democracy. And it was a defeat of “forces that wish to intrude in our lives.” The criminalisation of homosexuality for instance can now be brought before the courts, with the argument getting a new boost with the court’s decision to uphold th e Right to Privacy.

CPI(M) leader Sitaram Yechury welcoming the ‘far reaching judgement said, that this was a victory for those “who fought this governments sinister designy to deny Indians their fundamental right to privacy.”

Delhi Chief Minister Arvind Kejriwal thanked the SC fo “this very important judgement.”

The verdict is expected to have a direct impact now on the government decision to make Aadhar compulsory for all citizens; on Article 377 where homosexuality and oral sex are designated as a criminal offence; Section 66A, IT Act Verdict where the state can take action against an individual for sharing his thoughts on a social platform; and the DNA Profiling Bill, 2017 wherein the bodily rights of an individual can be profiled without his or her consent.