NEW DELHI: Deviating from its earlier stand, the Centre on Wednesday told the Supreme Court privacy is indeed a fundamental right, but a ‘qualified’ one. Earlier, the government had opined that it was not a basic right enshrined in the Constitution.
Arguing for the Centre, Attorney General KK Venugopal said certain aspects of privacy are protected under fundamental rights while others are merely part of common law. “Every aspect of it does not qualify as a fundamental right, as privacy also includes the subtext of liberty,” Venugopal told the nine-judge bench.
“There may be a fundamental right to privacy and it has to be a qualified right since it covers diverse aspects and a sub-species of the Right to Liberty. Every aspect cannot qualify to be a fundamental right.”
“Petitioners had argued that there is a fundamental right to privacy. You (Centre) stalled them saying privacy is not a fundamental right and now you are saying privacy is a fundamental right.
We will take your statement on record and close the case if you accept that right to privacy is a fundamental right,” the CJI said. In response, Venugopal said the government did not consider privacy as a single, homogenous right, but as a bunch of rights enshrined in the Constitution. He added that “something as amorphous as privacy” cannot be assigned the status of a fundamental right.
The bench also told the Centre its argument that right to privacy is an elitist construct is wrong. “If State wants forced sterilisation on say slum dwellers for population control among that group, perhaps only a privacy claim may stand in the way. If we say privacy is not a fundamental right, it would be blanket sanction of anything State can do.”
“Privacy isn’t an elitist concept. This will affect large masses. State can’t get a blanket sanction to do whatever it wants. Can State say we will compel slum-dwellers to undergo sterilisation since it may control population? Can you force poor women suffering from cervical cancer to take experimental drugs?” asked Justice Chandrachud.
Justice Chandrachud further said, “Some disclosure of information may or may not have inference of privacy like asking a woman in an employment form the number of children she had may not have a privacy impact, but asking the number of abortions can be. Can we give any such guideline?”
“Similarly, one can be asked about her mother and father’s name but no one can be asked about being born from first marriage or second marriage,” the bench said.
The AG reiterated, “There can be no right to privacy claim quo any information which is already in public domain.”
On this, Justice Nariman said, “Don’t forget the little man’s right to privacy. Everything is not Aadhaar-centric. We are going to consider all aspects and give you a comprehensive judgment for conceptual clarity of the nation.”
The bench also made it clear that it will only decide whether there is at all a fundamental right to privacy and the question whether Aadhaar violates privacy will be decided later by the five judges.
Meanwhile, Trinamool Congress-ruled West Bengal and the Congress-led Puducherry, Karnataka and Punjab too moved the court in support of declaring right to privacy a fundamental right.
The states were represented by senior advocate Kapil Sibal who said, “Privacy cannot be an absolute right. But it is a fundamental right. This court needs to strike a balance.”
Referring to different countries where the right to privacy was not there in the Constitution, Sibal told the bench that Pakistan has a right to privacy which is a joke. He urged the court “So if you give us a right, it should not become a joke.”
Attorney general K K Venugopal, presenting the stand of the Centre before a nine-judge bench, sought to distinguish the right to privacy in the context of developing and developed nations. “In a developing country, where millions of people are devoid of the basic necessities of life and do not even have shelter, food, clothing or jobs, and are forced to sleep on pavement even in the height of winter and, perhaps, to die, no claim to a right to privacy of the nature claimed in this case, as a fundamental right, would lie,” he said. The hearing remained inconclusive and will continue on Thursday.