During the marathon hearing of the case in the Apex Court over the past three years, the BJP-led NDA government had argued that right to privacy was not a fundamental right guaranteed in Indian Constitution as an inalienable fundamental right. Against this backdrop, Usha believes that the court’s verdict becomes even more significant.
How significant is today’s SC judgment?
This verdict signifies three important things. One, the judgments made in 1954 and 1963 won’t come in the way of our fundamental rights. Secondly, the SC has categorically endorsed the privacy rights after the long-standing struggle of the past 40 years. However, the government tried to destroy this right very systematically.
Thirdly, the SC has recognised that right to privacy is protected by Article 21 and by the whole chapter on fundamental rights.
Why in the Aadhaar case, has the government taken the plea of fundamental rights?
That is an interesting aspect to look into. It is not as if the government has denied the existence of right to privacy in every situation. For example, when people moved court asking that defamation should not be a part of criminal law, as the powerful use this clause to suppress the weaker section—the then government refused citing its respect for individual privacy. But on UID/Aadhar it took a different stand.
In your opinion, why did the government oppose privacy in the Aadhar case?
They did this to do red herring, to mislead and to buy time. You see, when they said that privacy can’t be treated as fundamental right, the Aadhaar case was at its final hearing stage. They raised this on March 16, 2015, when the bench was going to fix final hearing. Why didn’t they bring it up at the beginning? Why at this crucial stage? Meanwhile, they kept on expanding the scope and reach of Aadhaar. All this was very calculated.
The SC judgment says that right to privacy is valid even in the context of Section 377. How do you view it?
If you read the judgment, it is very open and clear. It says that fundamental rights are not linked with majoritarianism. If LGBTI is in a minority, no one can take away their fundamental rights. They have right to life, right to privacy, etc. This nine-judge bench has almost overruled the core of the Suresh Kaushal judgment. It will have a long-lasting impact.
This judgment has come down heavily on the controversial ADM Jabalpur judgment too…
Yes, it openly says that the judgment was “seriously flawed.” It has been made clear that fundamental rights can’t be suspended or taken back.
Do you think this judgment shall boost the legal fight against Aadhaar too?
It’s good that the Supreme Court has made it clear that privacy is a fundamental right. With this judgment, it becomes amply clear that the UID project shall have to meet the challenge of privacy as a fundamental right.
Privacy has been deeply compromised in this project and ample evidence has been submitted to the court in this regard. It possibly pushed the government to argue that privacy can’t be a fundamental right.
They (government) have been giving citizens’ private data to foreign companies. This thing can’t be done now. We see hope.