In a landmark judgement, a nine-member Supreme Court bench Thursday ruled that privacy is a fundamental right. While arriving at the verdict, the judges expressed their disapproval of the government’s submission that privacy is only an elitist concern, and those at the bottom of the pyramid need better welfare delivery first rather than a right to privacy.

Arguing on the government’s behalf, Attorney General KK Venugopal had said privacy concerns needed to be given up in lieu of better welfare delivery to those at the bottom of the pyramid. His comments had come in the wake of Aadhaar being made mandatory for availing a wide range of social welfare schemes. Aadhaar, a 12-digit unique identity number that the government wants every citizen to possess, has been criticised for infringing upon people’s privacy as it collects and stores their biometric data. Recent leaks of personal information stored in the Aadhaar database have only heightened such concerns.

The government’s arguments, however, failed to convince the court. It said there is no trade-off between good welfare delivery systems such as ration shops selling essential commodities at subsidised prices and ensuring that people retain their privacy.

“The Attorney General argued before us that the right to privacy must be forsaken in the interest of welfare entitlements provided by the State. In our view, the submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is unsustainable.”

— Concurring judgement written by Jagdish Singh Khehar, RK Agrawal and DY Chandrachud.

The judgement further stated that the government’s claim of privacy being an elitist concern is proof of misunderstanding about the constitutional position on privacy. The court said it will be “the most egregious violations of human rights” to say the poor only need economic welfare and no political or civil rights.

The judgement went on to say that all citizens have equal rights under the Constitution, and they can question the government with equal voice without having to worry about their economic status.

“The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court. Scrutiny of public affairs is founded upon the existence of freedom. Hence civil and political rights and socio-economic rights are complementary and not mutually exclusive.”

— Concurring judgement written by Jagdish Singh Khehar, RK Agrawal and DY Chandrachud.

The government has been defending the Aadhaar project by arguing that the right to life of a poor person is far more important than the right to privacy – a concern the attorney general argued was raised by a “few”.

On July 26, the government had told the court that the right to privacy was better suited to developed countries and not “in a country like India where a vast majority of citizens don’t have access to basic needs”.

“Through Aadhaar, benefits of welfare schemes reach only those who are entitled to it,” Venugopal had argued. “Depriving large sections of people of food, shelter and welfare schemes is also depriving them of the fundamental right to live. Biometric details for Aadhaar are essential for saving people from animal existence.”

At this, Justice DY Chandrachud had interjected saying he thought privacy was not an elitist concern. By way of example, he said the right to privacy could be the only thing standing between slum dwellers and their forced sterilisation for population control, if the government so decided.

In the final judgement on Thursday, Chandrachud, along with Chief Justice Khehar and Justice RK Agrawal, said there is an intrinsic link between freedom and justice. To illustrate this, the judges turned to Nobel Laureate Amartya Sen who showed how the Bengal famine of 1943 was made “viable” not just because of shortage of food but also due to restrictions on press freedom and civil liberties under the British rule.

The judges summed up their arguments in favour of the right to privacy for all by stating that it makes no distinction between the “birthmarks of two individuals”.

“Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilisation. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birthmarks of individuals.”  

— Concurring judgement written by Jagdish Singh Khehar, RK Agrawal and DY Chandrachud.