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Saturday, August 8, 2015

Indian Supreme Court Weighing Right to Privacy

Whether or not the Constitution of India establishes a right to privacy has become a central issue in a legal challenge to the government's Aadhaar identity card scheme being heard by the Supreme Court.  The Attorney General for the Modi government, Mukul Rohatgi, argued that since there is no fundamental right to privacy in the Constitution, arguments that the scheme violated this right did not need to be addressed. At the same time, Rohatgi suggested that a larger Constitutional panel of judges should be asked to render its judgment on this issue if greater clarity was needed. The government's argument was received with skepticism by the court, which countered that surely a right to privacy was implicit in the right to liberty that is explicitly provided in Article 21 of the Constitution. The Supreme Court is expected to issue a ruling in the case, deciding whether a referral of the issue to a constitutional bench is appropriate, on August 11.

Similar questions exist as to whether privacy is a constitutionally-guaranteed right in the United States, in both cases from the absence of the word privacy in the Constitution but with arguments that it is implicit in other rights that are explicitly stated. Years ago this was characterized as the Tinker Bell stratagem, namely that if you clap your hands and believe you see privacy in the Constitution, then it must be there! Unlike the U.S., however, India appears to have a judicial mechanism, which may be invoked shortly, for resolving constitutional issues in a direct manner apart from the particularities of individual cases.

One outcome of the Aadhaar case might be to stimulate the Modi government to introduce the comprehensive privacy bill recommended by the Shah committee in 2012.  After all, to argue that there is no right to privacy in a constitution is not the same as arguing that there should not be such a right.

Update:  On August 12, it was reported that the Supreme Court decided to refer the case to a five-judge bench for resolution of the privacy issue, while also imposing severe restrictions upon the use of the unique ID number established under the Aadhaar scheme.

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