NEW DELHI: Privacy is not an absolute right and it needs to be defined to be recognised as a fundamental right, the nine-judge Constitution Bench of Supreme Court observed. The court added that concerns over privacy cannot prevent the State from making laws imposing reasonable restrictions. The bench’s final verdict could be crucial for petitions challenging government’s mandatory Aadhaar scheme.
Appearing on behalf of petitioners, senior advocate Gopal Subramaniam challenged the Aadhaar scheme arguing ‘privacy need not be carved out’. “It’s embedded in right to liberty and dignity,” he said. This prompted Justice D Y Chandrachud to question Subramaniam. “How do we define privacy? Privacy may be a small component of liberty. But if people put themselves in the public domain using technology, is this not a surrender of their right to privacy?”
The bench further observed that right to privacy is only a small sub-sect of liberty. “Right to privacy cannot pre-empt State action. The right cannot be so overarching that it will prevent the State from legislating.” Justice Chandrachud said it will be extraordinarily dangerous to give a catalogue of what constitutes privacy. “Sexual orientation is also about privacy. If we say there is a fundamental right to privacy, our judgment in Naz Foundation becomes vulnerable.”
The bench meant its judgement against homosexuality might get reopened if privacy was assigned the status of fundamental right. In 2013, the apex court in Naz Foundation case ruled that Section 377 will continue making gay sex irrespective of age and consent an offence.
Senior advocate Shyam Divan also argued at length that a person should have the right to informational self- determination. “If you don’t recognize a right of privacy, all other rights will be denuded of their respect, vigour and essence. My body belongs to me, invasions of my bodily integrity can only be allowed under a totalitarian regime,” Divan said.
Senior advocate Arvind Datar said, “In 2017, for a democratic country like India to say that fundamental rights include a plethora of rights but not Right to Privacy would be paradoxical.” The hearing remained inconclusive and will continue Thursday with Centre likely to present its stand.