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SC privacy hearing Day 2: If India has agreed to privacy on international fora, why not in India?

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Aadhaar enrolment

[vc_row][vc_column][vc_column_text]Centred now on the issue of privacy and whether it is a fundamental right, the hearing of the case regarding Aadhaar in Supreme Court on Thursday saw petitioners cite arguments from international resolutions to argue that right to privacy was implicit in the fundamental rights and also that it was the duty of the state to expand the right rather than curtail it.

Further hearing will continue on Tuesday, July 25.

While hearing the case related to Aadhaar and the right to privacy – Aadhaar and its biometric data collection has been challenged as interfering in people’s privacy, and petitions on privacy as a fundamental  right are being heard – the special nine-judge constitution bench of the Supreme Court had observed on Wednesday (July 19) that the right to privacy cannot be absolute. It had termed privacy as an amorphous term incorporating several factors.

As the hearings continued on Thursday (July 20), more appellants presented their views on the importance of privacy being incorporated as a fundamental right, even though the Constitution makes no mention of it. It has been said that the writers of the Constitution intentionally omitted privacy as a fundamental right, because of its amorphous nature. However, on Thursday, the arguments were presented also from the international angle where India has been party to several international treaties which spell out privacy as an essential component of basic rights of a human being. Here the argument is if India has acquiesced to agree to this on international forums, how can it deny its own citizens similar rights?

Fifty-five years ago another constitution bench had decided that privacy was not a basic right. This is a larger bench and has the arduous task of deciding whether Indians have the right to retain certain basic information as “private”, or whether the government has the right to tear from its citizens all information even if the citizens concerned are unwilling to reveal the same.

It is not just important to make Aadhaar mandatory for all the functions that the government wants, but also to define the basic rights of a human being in India.

On Wednesday petitioners held up Finance Minister Arun Jaitley’s statement in Parliament when he was moving the Aadhaar Bill in March, saying: “Is privacy a fundamental right or not? The present Bill presupposes and is based on a premise, and it’s too late in the day to contest that privacy is not a fundamental right. Privacy is not an absolute right, which is subjected to a restriction established by law on a fair and just procedure.”

Since it pertains to the Aadhaar bill itself, Jaitley’s statement was not out of context.

The government’s stand, however, was standoffish. Former Attorney General Mukul Rohatgi, while arguing in court, had repeatedly said that Indian citizens donot have a fundamental right to privacy under the Constitution. He was justifying the collection of data such as iris scans and fingerprints taken.

Another important statement was made on Wednesday by senior lawyer Gopal Subramanium, representing the petitioners. He argued that the rights to life and liberty are pre-existing natural rights. “Privacy is embedded in both liberty and dignity. It is not a twilight right but the heart and soul of the Constitution,” he had said. 

Also important was the observation of Justice J Chelameswar, a judge on the current bench. He said: “Even freedom of press is not explicit in the constitution but courts have interpreted that the right to free speech includes freedom of expression of press.”

A political interlude had been provided last morning by CPM’s Sitaram Yechury, who had tweeted: “We have a government which believes in the right to privacy for top loan defaulters from being named, but not in Privacy for ordinary citizens. Right to Privacy of the ordinary Indian cannot be invaded by any government. Every Indian’s dignity is important.”

That political colour could not make it into the courtroom, though. Inside, the issue being discussed was more fundamental.

Thursday’s deliberations

On Thursday (July 20) senior advocate Arvind Datar, arguing for the petitioners, referred to a foreign article which gives 3 types of privacy. They are (1) Data privacy (2) Informational privacy and (3) Decisional privacy.

Justice DY Chandrachud asked: “What will happen if violation of privacy is by non state actor? It imposes on the state to have a regulatory framework to enforce these rights even if they are violated by a private party. The state cannot say that your right is violated by a private party and hence we are not concerned.”

Senior advocate Anand Grover then stared his argument for another petitioner. He said: “The Constitution is a living body and if it is a living body then it has to evolve. Fundamental rights have to be expanded and cannot be curtailed. India has ratified the International Covenant on Civil and Political Rights (ICCPR) which enumerates rights to privacy. States have an obligation to respect that is government must not violate the rights.

“The UN commission has two bodies. One is the General Assembly and another is the Human Rights Council. India, having ratified the resolution of international human rights, it is the obligation of the state to respect the treaty and also to protect the right of privacy as stipulated in Article 17 of the international law,” he said. “The obligation of the state is to enact legislation to protect privacy. The International Human Rights Commission has given two reports, the latest being of 2014.”

He stated that the General Assembly of UN recognises the law of privacy.  “Privacy is required to protect other rights. The report of the office of the UN High Commissioner for HRs on the right to privacy in the digital age (dated 30 June 2014) lays down the contours on the right to privacy under Article 17 of the ICCPR. Article 51 and art 253 of Constitution of India requires India to give effect to international treaties.

“No person shall be deprived of his life and liberty except procedure established by law,” said Grover. He quoted the Nalsa Case, the judgment in which stated: “In the absence of a contrary legislation, municipal courts in India would respect the rules of international law.”

So, he argued, “FRs including but not limited to Art 14, 19, 21 etc have to be interpreted in line with Art 17 of ICCPR.”

Justice DY Chandrachud asked till how far can a person remain anonymous? “If any person says I don’t want to disclose the names of my parents in the birth certificate and while making his passport? What is meant by legitimate and illegitimate use of data? The state can use data of HIV affected person to provide health services. It cannot be said that under the right of privacy, it cannot not be used if it is an absolute right.”

Senior advocate Sajan Poovayya, also for a petitioner, said: “The postulated issue of recognition of the right to privacy as a fundamental right is not merely to be looked at from the viewpoint of judicial dicta but also from how Parliament has manifested it’s understanding of the said right. Even in pre-constitutional legislation the sacrosanct position of a right to privacy had been recognised insofar as social procedures had been established in such laws to create any curb or fetter on any aspect of the said right to privacy.

“In post constitutional statutes, similar procedures established by law have always been provided to create fetter on aspects of privacy. The SC in context of right to information act 2005, ordered that right to privacy is not only recognized as a basic human right to under art 12 of UDHR but parliament has recognized it under Art 21.”

Poovayya added: “Keeping pace with sociological developments through judicial pronouncements of this court, has been that the right to privacy is (a) a fundamental right and (b) deals with persons and not merely places.”

Senior advocate Meenakshi Arora, also for one of petitioners, said: “Privacy did not emerge one fine day fully formed and structured from the theoretical penumbras of various constitutional articles. Rather it is an amorphous and a protean concept that emerges from values and principles that have evolved from case law over hundreds of years.

“In England, eavesdropping was criminalised under the Justices of Peace Act 1361. In his seminal ‘Commentaries on the Laws of England’ (8th edition, 1778, volume IV, p. 167,168), Blackstone writes of common nuisances which he states are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person; and are indictable only… In this category he includes, ‘6. Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after recourse, and thereupon to frame slanderous and mischievous tales, are a common nuisance and presentable at the court-leet; or are indictable at the sessions, and punishable by fine and finding sureties for their good behaviour.”

“Nowadays privacy rights are explicitly recognised or are recognised by implication under the Universal declaration of Human Rights (1948) (arguably part of customary international law and therefore part of the law of India), the International Covenant of Civil and Political Rights (ratified by India and so to be read into the Constitution), the European Convention of Human Rights, the Constitutions of the United States, the United Kingdom and virtually every other democratic or liberal Constitution. Constitutional courts in India have explicitly recognised a right to privacy for over 40 years. Our statutes recognise privacy interests as well. In particular the Protection of Human Rights Act, 1993 is relevant.

“Privacy or the right to be left alone has the following, amongst other important components:

  1. Privacy of one’s home and residence:
  2. Privacy of personal belongings and freedom from arbitrary searches and seizures:
  3. Privacy of personal data, and freedom from surveillance:
  4. Privacy of personal choice:                       

“The stray observations in the judgment in MP Sharma about the lack of a right of privacy were inaccurate as being somewhat overbroad in 1954 and are clearly erroneous today. As such, this Hon’ble Court may clarify the same and limit the ratio of the judgments to the facts of that case.”

The matter will be further heard on Tuesday (July 25).[/vc_column_text][/vc_column][/vc_row]

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Manipur: Congress hits back at BJP chief Nadda’s letter to Kharge

Ramesh emphasised that Nadda’s letter is replete with inaccuracies and reiterated that the people of Manipur long for normalcy, peace, and harmony.

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The Congress on Friday lashed out at BJP president JP Nadda’s accusations that the Opposition party was promoting a politically motivated narrative concerning the situation in Manipur.

The grand old party described Nadda’s letter to Congress chief Mallikarjun Kharge as a 4D exercise, which means denial, distortion, distraction, and defamation.

Nadda, responding to Kharge’s call for President Droupadi Murmu’s intervention and his claims of the Centre’s total failure in managing the crisis, claimed that the consequences of Congress’s “abject failure” in handling local issues in Manipur during its governance are still being felt today.

Responding to Nadda, Congress General Secretary for Communications Jairam Ramesh stated, “Congress President Kharge ji wrote to the President of India on Manipur. Apparently, to counter that letter, the BJP President has now written to the Congress President.”

Ramesh emphasised that Nadda’s letter is replete with inaccuracies and reiterated that the people of Manipur long for normalcy, peace, and harmony.

He noted that they are posed with four critical questions: When will the Prime Minister visit the state? How much longer will the Chief Minister remain in office despite lacking majority support? When will a full-time Governor be appointed? And when will the Union Home Minister be held accountable for his failures in Manipur?

Nadda expressed astonishment at the Congress’s ongoing efforts to sensationalize the situation in Manipur, pointing out that Kharge appeared to overlook the fact that his party’s past government had legitimized the illegal migration of foreign militants to India, during which former Home Minister P Chidambaram had signed relevant treaties.

On Tuesday, Kharge had written to President Murmu regarding the worsening conditions in Manipur, requesting her immediate intervention to ensure that the citizens of the state can live peacefully and with dignity.

In his two-page letter, Kharge accused both the Union and Manipur state governments of “completely failing” to restore peace and normalcy over the past 18 months, resulting in a loss of public confidence in their leadership.

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Rahul Gandhi is right, Gautam Adani should be arrested: RJD president Lalu Yadav

“Rahul Gandhi is right. Adani should be arrested,” said Prasad, who is an old ally of the Congress and a staunch opponent of the BJP, to which Adani is said to be close.

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RJD president Lalu Prasad Yadav on Friday spoke in support of Congress leader Rahul Gandhi’s demand for immediate arrest of Gautam Adani, after the Industrialist was charged in the US for alleged bribery and fraud.

Gandhi, the Leader of Opposition in the Lok Sabha, said on Thursday that Gautam Adani should be arrested immediately, and his protector Madhabi Puri Buch should be investigated

The former Congress chief claimed that the recent developments vindicate his long-standing allegations against Gautam Adani. He took a sharp dig at Prime Minister Narendra Modi and alleged that Modi is protecting Adani, and is also involved in corruption. 

Yadav, the former chief minister of Bihar, was responding to queries from journalists here about Gandhi’s statement on the previous day, in the backdrop of charges of bribery and fraud against the Adani group in the US.

“Rahul Gandhi is right. Adani should be arrested,” said Prasad, who is an old ally of the Congress and a staunch opponent of the BJP, to which Adani is said to be close.

The RJD supremo, who incidentally has been convicted in several fodder scam cases and is on bail, was also asked about prospects of the INDIA bloc, of which his party is a part, in Jharkhand, where the counting of votes for assembly polls is scheduled on Saturday.

Speaking to PTI, the ailing septuagenarian replied, “I would like to remain focused on my statement that Adani must be arrested. I am not worried much about a new government (in Jharkhand) where we are already in power.” Jharkhand witnessed a straight battle between the INDIA bloc and the BJP-led NDA, which included the JD(U) headed by Nitish Kumar, Prasad’s arch-rival and the current Chief Minister of Bihar.

Addressing a press conference on Thursday, Gandhi further said that Chief Ministers have been jailed for scams of Rs 10-15 crore, but Adani, who has committed a scam of Rs 2000 crore is walking free.

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Cash for votes row: BJP leader Vinod Tawde sends legal notice to Rahul Gandhi, Mallikarjun Kharge, asks them to apologise or face defamation

The BJP leader said the allegations against him were false, baseless and made with malafide intentions.

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Cash for votes row: BJP leader Vinod Tawde sends legal notice to Rahul Gandhi, Mallikarjun Kharge, asks them to apologise or face defamation

BJP leader Vinod Tawde, accused of distributing cash to influence voters, has sent a legal notice to Congress leaders Mallikarjun Kharge, Supriya Shrinate and Rahul Gandhi over the controversy. The BJP leader has demanded their apologies or face a Rs 100-crore defamation case.

Vinod Tawde’s legal notice came after regional party Bahujan Vikas Aghadi (BVA) leader Hitendra Thakur on Tuesday accused him of distributing Rs 5 crore at a hotel in Virar in Palghar district, 60 km from Mumbai, to woo voters.

In the legal notice, the BJP leader said the allegations against him were false, baseless and made with malafide intentions. He claimed that he demanded an apology from the three Congress leaders for their remarks against him in the cash-for-votes row or he would be forced to initiate criminal proceedings against them.

Just a few hours before the Assembly Elections, a video went viral on Tuesday showing BVA workers storming into the hotel in Palghar during a meeting between Vinod Tawde and Rajan Naik, the BJP candidate from the Nalasopara seat. The BVA workers alleged that Tawde was caught red-handed with Rs 5 crore cash.

In the viral video, the BVA workers were seen taking out bundles of cash from a bag, while Tawde was sitting at a distance. The BVA workers also took pictures and videos of him on their phones. Amid these allegations, BVA leaders said that Rs 5 crore cash was distributed, an election official on Tuesday said Rs 9.93 lakh cash was recovered from the hotel rooms.

However, Vinod Tawde denied the allegation, saying he was only providing guidance to party workers on poll procedures and said he was not stupid enough to distribute money at his opponent’s hotel. Speaking to the media, he said that the Vivanta Hotel is owned by the Thakurs, and he is not stupid to go to their hotel and distribute money there.

The Police registered two FIRs against Tawde, BJP candidate Naik and others in connection with the controversy. Additionally, the Election Commission filed three FIRs against Tawde.

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