Interplay of the Right to Privacy vis-a-vis the Aadhaar Scheme

Bahram N. Vakil, Saloni Bhandari & Firoza Dodhi

The Universal Declaration of Human Rights (“UDHR”), the International Covenant on Civil and Political Rights (“ICCPR”) and other international treaties recognize privacy as a fundamental human right. Article 12 of the UDHR, defines the right to privacy:

no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Yet, some countries, including India, do not expressly include the right to privacy in their Constitution. Despite a lack of legislation to this effect, the common law has developed a multi-faceted definition of the right to privacy. Over the past several decades, judicial activism in India has developed precedent wherein the right to privacy has been inferred through other articles of the Constitution. On July 19, 2017 a nine-judge bench of the Supreme Court, led by Chief Justice Khehar, assembled to determine whether Indian citizens have a fundamental right to privacy under our Constitution.

The Constitution of India does not expressly provide a right to privacy.  However, the judiciary has read in the right to privacy within the ambit of existing Constitutional rights, specifically: freedom of speech and expression [Article 19(1)(a)] and right to life and personal liberty [Article 21]. In Kharak Singh v. State of Punjab, the minority judgments of Subba Rao J. and Shah J., held that the right of privacy does form an essential ingredient of personal liberty, as defined in Article 21. The majority, however, was of the alternate view that Article 21 could not be interpreted to include the right to privacy. This 1964 judgment was the first time the Supreme Court, albeit by a minority, explicitly recognized the existence of the right to privacy under Article 21. In the 1994 case of R. Rajagopal v State of Tamil Nadu, the Supreme Court directly linked the right to privacy with Article 21 of the Constitution and held that,

the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concern the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

The decisions made at common law, demonstrate the Indian judiciary’s vision to establish guidelines for the right to privacy. Even so, these definitions have focused extensively on personal privacy; there is a lack of judicial opinion regarding data privacy.

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Cite as: Cite as : Bahram N. Vakil, Saloni Bhandari & Firoza Dodhi, Interplay of the Right to Privacy vis-a-vis the Aadhaar Scheme, 1 Ind. J. of Const. & Admin. L. 33-38(2017).


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