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Aadhaar hearing: Why petitioners urged SC not to define privacy

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Anusha Soni
Anusha SoniJul 20, 2017 | 21:39

Aadhaar hearing: Why petitioners urged SC not to define privacy

The right to privacy debate in Supreme Court took a crucial turn when the petitioners urged the nine-judge bench not to exhaustively define as to what constitutes "right to privacy". Arvind Datar, Shyam Diwan, Anand Grover were the leading lawyers (from the petitioners' side) who insisted that the Constitution does have an inherent right to privacy.

After the Supreme Court sought assistance on the issue, legal eagles have strived to clarify the definition, scope, origins and the limitations of the right to privacy.

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The key question has been that since privacy is not explicitly mentioned in the Constitution, where should one find its existence and origin. The top lawyers have argued that privacy is inherent in right to equality, right to life and freedom of expression. All three are fundamental rights protected under the Indian Constitution.

The hearing by the nine-judge bench was triggered by a petition that challenged the mandatory use of the Aadhaar identity card based on biometrics, which according to its critics infringes upon the right to privacy.

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Datar, responding to the questions of the bench, has said that privacy can be found in any of the three fundamental rights depending on the circumstances of the case. Depending on the article, relevant restrictions would be placed. But the legal arguments are clearly against any exhaustive list defining privacy or its restrictions.

The petitioners, fighting for privacy, want the definition to be uncodified because it allows the right to be stretched into various circumstances and situations. The idea is that the amorphous nature of the right to privacy will allow more space for judicial intervention. Citizens can arguably enjoy greater protection from state and private companies affecting multiple spheres of life.

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Interestingly, Chief Justice of India JS Khehar observed that if "liberty" is inherent to democracy and privacy stems from the idea of "liberty" then human dignity should be at the centre.  The CJI said that if dignity is offended, privacy may be invoked. "If a question bothers the integrity and dignity of an individual, then it may impinge upon privacy," observed CJI Khehar. The line of argument also suggests that the court is open to consider a broader, flexible definition of privacy embedded in the fundamentals rights.

On Tuesday (July 25), attorney general KK Venugopal will present the submissions for the Centre. The government has argued that privacy does not have the protection of a fundamental right and is rather a common law right which can be usurped by the legislature.

 

Last updated: July 21, 2017 | 14:33
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