Right to privacy and Constitution

A bench of nine judges began hearing a case, which will have a far-reaching impact on the years to come and will, in effect, decide whether the right to privacy is protected and guaranteed by the Constitution of India.
The case has its origins in a challenge brought to the Aadhar Card Scheme, in which one of the major arguments had been that it violated the fundamental right to privacy of a person. In response, the previous Attorney General Mukul Rohtagi had questioned whether such a right was protected by the Constitution. He had submitted that early decisions of the Court in M.P. Sharma v. Satish Chandra (1954), decided by eight judges, and Kharak Singh v. State of U.P. (1963) decided by six judges had doubted the existence of the said right. He further argued that subsequently smaller benches of the court had upheld the right to privacy, notably in Gobind v. State of M.P. (1975), which were decided by two judges. In doing so, the Attorney General brought into question over three decades of decisions of the Court, which had affirmed the constitutional right to privacy. Taking note of his arguments, the Court referred the matter to a larger bench in August 2015.
On Tuesday, 18thJuly, 2017, a little less than two years after the reference was made, a constitution bench of five judges, headed by the Chief Justice of India, heard the case. Noting the current Attorney General’s submissions that the case had to be heard by nine judges, in order to determine the correctness of M.P. Sharma, which had been decided by eight, the Bench listed the matter for the next day.
The newly constituted nine judge bench began its historic hearing into the right to privacy the very next day, i.e., 19th July, 2017. A battery of senior counsels appeared for the petitioners, including Gopal Subramanium, former Solicitor General of India, Soli Sorabjee, former Attorney General of India, Shyam Divan, Arvind Datar, Anand Grover and Meenakshi Arora. They all argued that the right to privacy was well entrenched in the Constitution as a fundamental right and a key component of personal liberty, freedom of speech, equality, dignity and the freedom of conscience. They also argued that Kharak Singh was overruled by a bench of seven judges in the celebrated case of Maneka Gandhi v. Union of India (1978), which held that Articles 14 (right to equality), 19 (fundamental freedoms) and 21 (right to life and liberty) had to be read together.
The arguments will continue this week, when Union of India will respond[Justice K.S. Puttaswamy (Retd.) v. Union of India, Writ Petition(C) No. 494 of 2012, order dated 20.07.2017]

Major Court Decisions

i. Directions to implement Food Security Act: The Supreme Court passed a slew of directions directing the Central Government to properly implement in National Food Security Act, 2013 across the country. The Court held that it was a law passed by Parliament and the Union Government could not argue that the states were not implementing it. The Court directed the Secretary, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, to coordinate with all the state governments for the implementation of the Act, ensure that grievance redressal mechanisms were established, as well as State Food Commissioners and Vigilance Committees [SwarajAbhiyan(V) v. Union of India and Ors., W.P.(C) 857 of 2015, order dated 21.07.2017]

ii. Seniority not preserved for those choosing to be absorbed on deputation: The Supreme Court held that government employees who chose to be absorbed at the department where they served on deputation, could not preserve the seniority of their parent department. The Court was considering the claim of Junior Engineers of the All India Radio who had been deputed to the Electrical Wing of the Postal Department in 1996. They had agreed to a condition stating that they would be treated as new recruits upon their absorption in the new department, but their other benefits would be preserved [MrigankJohri v. Union of India, Civil Appeal No. 9316 of 2013, order dated 10.07.2017]

iii. Centre says states must take action against cow vigilantes: The Central Government told the Supreme Court that it did not support any cow vigilantes and that it was the responsibility of the states to keep them in check, as it was a matter of law and order. The Court gave the government time to put the statement in writing and file an affidavit before it [TehseenS. Poonawalla v. Union of India, W.P.(C) 754 of 2016, order dated 21.07.2017]

iv. Oversight Committee of Medical Council replaced: The Supreme Court allowed the request of the Central Government to replace the court appointed Oversight Committee of the Medical Council of India, with one, which was selected by the Government. The Committee will now be headed by Dr. V.K. Paul, Professor & Head, Paediatrics, AIIMS, New Delhi and comprise four other eminent doctors. The MCI will continue to have to seek approval of all its decisions from the Committee [AmmaChandravati Educational And Charitable Trust v. Union of India, W.P. 408 of 2017, dated 18.07.2017]

v. Original electronic evidence in Vyapam Scam to be produced before court: Taking note of the allegations of whistleblower, Prashant Pandey, the Supreme Court directed the CBI to file a report of a forensic laboratory in Hyderabad before the special court trying the Vyapam Scam cases. Pandey had alleged that the electronic evidence had been tampered with by the investigation agencies, prior to the CBI taking over the investigation. The report obtained from the Gandhi Nagar Laboratory was based on this tampered evidence, which was led as evidence in the trial. After the direction of the Supreme Court, the original evidence will also be placed before the court [PrashantPandey v. Central Bureau of Investigation, W.P.(C) 418 of 2015, order dated 21.07.2017]

vi. Case against DMK veteran K.N. Nehru restored: The Supreme Court revived a criminal case of disproportionate assets under the Prevention of Corruption Act, 1988 against former Tamil Nadu transport minister and DMK veteran K.N. Nehru and his wife. The Court held that the order of the Madras High Court was premature. The allegations include that between 2006 and 2011 Mr. Nehru’s assets jumped from 2.8 Cr. to 18.5 Cr. [State v. K.N. Nehru, Criminal Appeal 1222 of 2017, order dated 21.07.2017]. (IPA/To be continued)

Saturday, 29 July, 2017