The Central government on Tuesday told the Supreme Court that it has
set up a 10-member committee to look into the data protection framework
in the country. The panel, headed by former SC judge BN Srikrishna and
also comprising UIDAI CEO Ajay Bhushan Pandey and Vidhi Legal founder
and research director Arghya Sengupta as its members, will identify key
data protection issues, evolve principles on it, recommend methods of
addressing them and will also suggest draft data protection Bill.
The panel was set up to ensure growth of the digital economy as the
government felt keeping personal data of citizens secure and protected
is of utmost importance, additional solicitor general Tushar Mehta told a
nine-judge constitution bench headed by Chief Justice JS Khehar.Mehta,
who was appearing for UIDAI, said the government has notified setting up
the panel a day ago. The ASG, appearing for UIDAI, maintained that
right to privacy can’t be given the status of a fundamental right and
elevating it will have dangerous repercussions.He said the right to
privacy, though an inherent right, is only a common law right and
whenever the legislature had found it necessary and desirable to protect
a person’s privacy, it has done so by enacting a statute and thus,
making a statutory right of privacy. He contended that legislature was
in a better position to protect some forms of privacy through statutory
enactments, which can be tested on the judicial principles.But the bench
told him that there was a vast difference between interpretation of a
statute and the Constitution and that it was for a constitutional court
and not for the Parliament to interpret the latter.
“Fundamental rights need to be interpreted according to changing
needs of the times. The Constitution cannot be interpreted like a
statute. Words are not important (in interpretation of the
Constitution), the principles are…and that task is with us, the
court…not Parliament,” said justice Rohinton F Nariman. While agreeing
with the bench, Mehta insisted that privacy was an important and
enforceable right, but not a fundamental right. He further added that
the “courts have always refrained from creating a new right adopting the
process of interpretation since creating a ‘right’ is not the
prerogative of the courts, but that of the competent legislature. Even
in other jurisdiction, the courts have refrained from ‘creating’ a right
by way of judicial law making”.
The ASG further said amenities like food and toilets are more
important than privacy in India. Senior counsel Aryama Sundaram, arguing
for Maharashtra, reiterated that only Parliament was empowered to
include right to privacy as a fundamental right and it was not the job
of the Supreme Court. The issue arose when Justice Nariman said UN
Declaration of Human Rights 1948 to which India was a signatory had
expressly recognised privacy as an inalienable right and this
constitutional bench just had to read it in. Sundaram told the Bench
there was no room for interpretation but only a constitutional amendment
can do so. He said Constituent Assembly had discussed the right to
privacy and had come to a conclusion that it is part of Article 19 and
21. “Privacy largely is my right not to be intruded into my person, my
private space, these are right to liberty. All these are already
protected.
Right to privacy needs to be governed and protected statutorily and
it cannot be a fundamental right,” the senior lawyer added. Senior
lawyer Rakesh Dwivedi, appearing for BJP-ruled
Gujarat, also opposed treating privacy as a fundamental right. He
pointed out that technology should have a life enhancing effect. His
stand was supported by Justice Chandrachud, who observed: “Privacy must
not stifle innovation in information technology…it should not take away
the benefits of knowledge economy…privacy must develop in a
socio-cultural context.”
Further hearing on the issue will resume on Wednesday.
Source : http://www.financialexpress.com
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