SC rebuts govt's arguments on privacy infringement

The Supreme Court today rebutted the Centre's defence that collection of biometric details has not infringed the right to privacy of the citizens even if these were collected before the enactment of a law on Aadhaar in 2016.

While the government referred to verdicts in two earlier cases relating to privacy and said the top court had then held that privacy was not a fundamental right, the apex court bench said the question of privacy was "irrelevant" in these cases.

A five-judge bench headed by Chief Justice Dipak Misra has been persistently asking the Centre what would be the status of the biometric details collected between 2010 and 2016 as there was no enabling law empowering the Unique Identification Authority of India (UIDAI) to collect personal details for Aadhaar registrations.

A nine-judge bench, on August 24, 2017, had held that the right to privacy was a fundamental right and laid down parameters to test State action regarding its infringement. It had held that one of the conditions was that there should be a law.

On the 26th day of the ongoing arguments, Attorney General K K Venugopal referred to the apex court verdicts in the M P Sharma (1950) and the Kharak Singh (1962) cases and said these had held that the right to privacy was not a fundamental right and hence, the Centre and the UIDAI had not violated the privacy rights while collecting biometric details between 2010 and 2016, when there was no law.

"All subsequent judgements of smaller benches, holding right to privacy as a fundamental right, were per incuriam (characterised by lack of due regard to the law)," Venugopal submitted before the bench, which also comprised justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan.

"Privacy was not a fundamental right when UIDAI was collecting the biometric details from the citizens," he said, adding that moreover, during 2010 to 2016, the collection of biometric details under Aadhaar scheme was voluntary and hence, nobody can claim that they were forced to part with personal details.

The top law officer said the judgements in the M P Sharma and the Kharak Singh cases were overruled in 2017 only in the Justice Puttaswamy verdict that had held the right to privacy as a fundamental right.

However, Justice Chandrachud, who had penned the main privacy verdict, differed with Venugopal and said, "we have dealt with the M P Sharma order in our judgement. There was no occasion for the bench to deal with privacy. In that case, the petitioner was asked to produce some documents... (so) the question of privacy was irrelevant in M P Sharma (case)."
To this, the bench said "There was no collection of biometrics and there was no authentication taking place at that time."