Right to privacy: Centre’s defence of Aadhaar in the Supreme Court seems to be echoing Nehru

The desire to protect Aadhaar – a 12-digit unique identification number – from consistent judicial challenges has forced the Union government to open an age-old debate, which pits the rights of an individual against the rights of the collective. The Centre has argued before a nine-judge bench of the Supreme Court that the right to privacy cannot be a fundamental right as privacy cannot be converted into an absolute right and be placed above the welfare of the masses. It accused those asserting such a right to privacy of being “esoteric and elitist”.

This debate of the individual versus the collective has been raging in India ever since the Constitution was adopted on January 26, 1950. Curiously enough, the Centre is now sounding more Nehruvian in its approach in placing the collective over the individual even though the Bharatiya Janata Party is considered ideologically opposed to the very idea of Nehruvian politics.

But while the Constitution rigorously recognises the need to further the welfare of the masses, the idea that the individual could be suppressed by the state in the garb of welfare has been consistently challenged by the Supreme Court. In this sense, the hearings in the right to privacy matter are a battle between two worldviews of two different eras.

Welfare vs rights

The Constituent Assembly, which framed India’s Constitution between 1946 and 1950, deliberated long and hard on the matter of fundamental rights. What rights should be made fundamental, and what should not, saw heated discussions in the Assembly, which resulted in two different and distinct parts of the document.

The Constitution places all fundamental rights under Part III. These rights are enforceable and justiciable. They could be broadly categorised as the right to freedom, right to equality, right against exploitation, right to freedom of religion, cultural and educational rights and the right to seek remedies.

The state cannot trample upon and remove these rights through the legislative process, though the Constitution provides for reasonable restrictions. For example, even the right to life, the foundation of all rights, can be taken away in the rarest of rare cases in the form of capital punishment, but not in any other manner. However, a fundamental right provides a strong constitutional barrier that keeps arbitrary state encroachment in check and gives the citizen an opportunity to invoke Article 32 – through which individuals may seek redressal for the violation of their fundamental rights – and approach the Supreme Court. It is this protection that the petitioners in the Aadhaar-related privacy case before the apex court are now seeking. By exalting privacy from an ordinary right to the position of a fundamental right, the petitioners want the rigorous eye of the Supreme Court to be ever vigilant on this important facet that makes a dignified individual.

Part IV of the Constitution contains the Directive Principles of State Policy. As the name suggests, these are principles on which governance is to be based. These collectively form the direction that state policy is expected to take to improve the lives and livelihood of Indian citizens. It is supposed to guide the “social revolution” in India, a term that was often invoked by BR Ambedkar during the Constituent Assembly debates.

The directive principles are elaborate and contain socialist elements such as proper working conditions, equal pay for equal work, reduction in the concentration of wealth and the means of production in the hands of a few, and equitable distribution of resources. Article 37 of the Constitution states expressly that these principles are not enforceable in a court of law. But these principles should be the basis of law making.

The idea behind not making the directive principles enforceable was India’s economic situation at the time of independence in 1947. To be implemented immediately, these principles would have required huge resources, which the state did not possess. However, some of these principles were envisaged to become fundamental rights in the future. In 2009, for instance, Parliament made the right to education a fundamental right.

Striking a balance

It is instructive to retrace how this attempt to strike a balance between fundamental rights and the directive principles played out immediately after the adoption of the Constitution.

In his book, The Court and the Constitution of India, former judge of the Supreme Court, O Chinnapa Reddy, argues that the rights and directive principles represented two distinct value systems – the first inspired by the liberal ethos of the French and American revolutions and the second a reflection of the values of the Russian revolution. Since the Constituent Assembly was dominated by men accustomed to colonial rule, Reddy concludes that the Constitution became heavily “property-oriented” rather than being “poverty-oriented”. In other words, there was much emphasis on the individual.

This meant that the Constitution was pregnant with a contradiction between rights and directive principles. Reddy extracts the note to the Assembly from BN Rau, its constitutional adviser, who indicated this clash succinctly. Rau cautioned that the “private right will override the public weal [public good]” in the arrangement preferred by the Assembly between Part III and Part IV of the Constitution.

What is striking here are the similarities in the arguments made by the present Bharatiya Janata Party-led Union government and the Congress government under Jawaharlal Nehru in furthering social welfare by fencing the breadth of fundamental rights.

When the Bill proposing the fourth amendment to the Constitution, which prescribed certain restrictions on property rights, was moved by Jawaharlal Nehru in 1954, the question of the position of directive principles came to the fore. Reddy extracts Nehru’s justification of amendment thus:

“I would like to draw the attention of the House to something that is not adequately stressed either in Parliament or in the Country. We stress greatly and argue in courts of law about the fundamental rights. Rightly so, but there is such a thing also as the Directive Principles of Constitution. Those are, as the Constitution says, the fundamentals in governance of the country. If there is an inherent contradiction between the fundamental rights and the directive principles..it is up to the Parliament to remove the contradiction and make the fundamental rights subserve the directive principles of state policy.”

The BJP government has now gone a step further. Attorney General KK Venugopal, rather than citing the directive principles, has read the duty of the state in ensuring welfare as a key element in guaranteeing the right to life and right to liberty and the promise of social, economic and political justice in the Preamble to the Constitution. While the petitioners seeking right to privacy have argued that privacy is an important element of liberty and dignity, the Centre seeks to make welfare measures an inextricable element of assuring the right to life, which is the foundational right that according to Venugopal supersedes other rights.

Settling the dispute

In the coming weeks, all eyes will be on which side the Supreme Court will take. Over the years, eminent judges have stressed on the importance of the right to privacy, sometimes going against the majority opinion of fellow judges. In his dissent in the Kharak Singh case, which the Centre has cited as an authoritative judgement against a fundamental right to privacy, former Chief Justice Koka Subba Rao said: “[N]othing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy.”

Since Kharak Singh in 1962, the Supreme Court has, in various judgments, reiterated that the chapter of fundamental rights in the Constitution should be read as a whole. Each right has an implication on the other and a right cannot be compartmentalised and seen individually. The court has also, in the past, dismissed the idea of arbitrary curtailment of a right. The court has accommodated public good through reasonable restrictions and not by completely negating fundamental rights to serve the welfare machinery. An example would be laws pertaining to preventive detention. Though conceived by the Constitution itself, courts have put in place elaborate checks and balances to stop the state from abusing this provision. In doing so, public good, in the form of protecting law and order, and individual right to liberty, were balanced. This balance between privacy and welfare is what is again expected when the court rules on the Aadhaar case before it.