Privacy is an even bigger issue than Aadhaar: We must care
It's alarming and reassuring at the same time that the Supreme Court is settling the question of "right to privacy" decades after we adopted an Anglo-Saxon style of the Constitution.
The key question being adjudicated is whether the right to privacy is a fundamental right under the Indian Constitution or not. The Centre hasn't denied the existence of a right to privacy, it has smartly argued that it's a common law right.
The distinction is essential here. While fundamental rights are explicitly protected under the Constitution and can be pressed against the State in a court of law, the status of common law rights is ambiguous.
It is possible that common rights might not survive in the teeth of a legislation. It is further debatable whether the courts can press the common law rights against the State.
The term "Common law" rights come from the tradition of law in England when people were tried by the jury system and the popular morality largely constituted the law. Unlike India, where the imposition of law and Constitution had an inorganic process and we imported legal principles and Westminster democracy; the law in England developed through precedents, evolving along with public morality.
Common law principles must be separated from the common law rights. When the principles form the basic tenets of the justice system for example - one can't be the judge of its own cause, or the law must seem to be fair. The nature of common law principles is wide but common law rights and their implementation is a vague and uncertain territory.
There are conflicting judgments from the Supreme Court. While two Constitutional bench judgments in Kharag Singh (1962) and MP Sharma (1954) say that the right to privacy is not an explicit right under the Constitution, the contention of the petitioners in the court has been that these judgments have been overruled by later judicial pronouncements. So far this anomaly has been a thriving debate academically and the smaller bench judgments went on to assume the existence of the right to privacy.
Though it may seem bizarre to many that such a fundamental tenet of democracy is questioned today, but the devil had to be addressed. The nine judge Constitution bench headed by the Chief Justice of India JS Khehar will settle the position in law.
And we must care because this is bigger than Aadhaar which is a government scheme. Privacy is about defining the relationship of the government with the citizens. It's about how much government can interfere in your life. How important is individual consent to one's data, information etc.
Not only the government, the ever expanding scope of private companies in individual lives - such as Facebook, Google, WhatsApp. How much right do we have to our own information and is there any privacy?
The top court will decide whether more than 120 crore people have a fundamental right to privacy and, yes, we certainly must care.