Fundamental Right To Privacy On Case-To-Case Basis, Centre Argues
The Centre’s latest arguments is a departure from its earlier stance.
The government is ready to accept privacy as a fundamental right but only on a case-to-case basis, the Centre argued before the Supreme Court on Wednesday.
In what seems to be a departure from the government’s previous stance, Attorney General KK Venugopal presented to a nine-judge bench of the apex court that there is fundamental right to privacy but every aspect of privacy cannot be fundamental.
There is a fundamental right to privacy but it is wholly qualified and since the right to privacy consists of diverse aspects and sub species of liberty, every aspect or sub species will not qualify as a fundamental right.KK Venugopal, Attorney General
The central government’s stance so far has been that privacy is a common law right and the Constitution doesn’t explicitly provide for it. But in its arguments on Wednesday, the Centre continued to press against elevating the right to privacy as a fundamental right but told the court that it could be seen as a sub-species of the right to life. “Privacy as a fundamental right could have been mentioned in the Constitution but has been omitted. I submit this was deliberate,” the Attorney General said.
Aadhaar-issuing authority, the Unique Identification Authority of India (UIDAI), however, took a stand that was contrary to the Centre’s. Privacy is “an enforceable right but it is not a fundamental right”, UIDAI argued before the bench on Wednesday.
During the day’s arguments, four states and one Union territory – Karnataka, West Bengal, Punjab, Puducherry and Himachal Pradesh – backed the constitutionality of the right to privacy.
Kapil Sibal, counsel for the states, told the court that with the advent of technology, which is pervasive in nature, the state had become powerful enough to be invasive in a citizen’s life. “The court must hold that there is a fundamental right to privacy and it is protected by the Constitution,” Sibal urged.
A five-judge Constitution bench of the apex court that was hearing the validity of Aadhaar and certain aspects of privacy had referred the limited matter of whether privacy is a fundamental right to a nine-judge bench. The nine-judge bench is re-examining whether the two earlier rulings – 1954 judgment in MP Sharma’s case and 1962 verdict in Kharak Singh’s case – are the correct expressions of the Constitution. An eight-judge and a six-judge bench, in the two cases, respectively, had held that there’s no fundamental right to privacy.
The nine-judge bench is being led by Chief Justice of India JS Khehar and includes Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer.
