Privacy can be fundamental right with some riders: Government to Supreme Court

The contentious issue as to whether right to privacy was a fundamental right or not was referred to a larger bench in 2015 after the Centre had underlined the issue of two judgements delivered in 1950 and 1962 by the apex court that had held it was not a fundamental right.

Right to privacy could be a fundamental right, but it could not be absolute, Attorney General KK Venugopal submitted before a nine-judge constitution bench headed by Chief Justice JS Khehar.

"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 or subspecies cannot qualify to be a fundamental right," he said.

"Right to privacy can't be one homogeneous right. It's not absolute and is rather qualified to be elevated to the level of fundamental right. Privacy will be one species which comes under right to liberty," he said.

The Centre's assertion came when the bench posed a pointed query to the attorney general as to what was the stand of the government on the question whether right to privacy was a fundamental right or not.

"You are the responsible government officer. It’s okay to may a statement. We will take your statement on record and close the case if you accept that right to privacy is a fundamental right," the bench, also comprising Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, said.

During the day-long hearing, Venugopal asserted that right to privacy could not be bundled as a single right in a developing country like India where a few persons, claiming right to privacy, override the fundamental rights of 60-70 million people, who did not have access to basic amenities like food and shelter.

"We are a poor country. In Kalahandi, a mother is forced to sell her girl child for Rs 50,000 to Rs 60,000 who will eventually be taken to a brothel where her privacy and bodily integrity will be taken away," he said.

Venugopal contended, "Under the MNREGA scheme, the government is giving money for the work done by people through Direct Benefit Transfer (DBT) into their bank accounts. The money now goes directly into their bank accounts after being linked to Aadhaar which they never got earlier.

"Even the World Bank has appreciated the effort and said that this model should be adopted by other countries".

The bench then said, "You want to make the DBT to reach the beneficiaries. It's all right as that can be the legitimate interest of the government".

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 judgement for conceptual clarity of the nation."

Venugopal referred to the submissions of senior advocate Kapil Sibal, representing four non-BJP ruled states of Karnataka, West Bengal, Punjab and Puducherry, that right to privacy could not be an absolute right.

In the forenoon, Sibal had argued these four states supported the contention that right to privacy be held as fundamental right in the age of technological advancements.

When the top law officer was seeking the court's intervention to distinguish as to what "sub-species" of the right to privacy would qualify for being considered as fundamental right while keeping in mind the rights of poor and marginalised section of society, the court intervened and referred to the sterilisation campaign undertaken during the Emergency.

"Sterilisation was the worst experiment ever done on the poor people of the country," the bench said.

Venugopal termed the Emergency as the "most unfortunate incident in the life of the country" and said, "We all hope that it will never occur again."

He said that during the Emergency, the fundamental rights of the citizens were taken away and even politicians like former Tamil Nadu chief minister M Karunanidhi had to bear hardships.

The attorney general then referred to the consequence suffered by the then ruling party for imposition of the Emergency and said that in Tamil Nadu it never came back to power.

He took serious objection to the earlier statements made by the lawyers for right to privacy that making Aadhaar mandatory has converted India into a totalitarian state.

"It is not justified at all. Much stronger words have been used. Right to privacy cannot be used to deprive the basic necessities of life to the poor," he said.

The bench, however, asked him to restrict his argument to the question of right to privacy and its place in the Constitution.

The apex court observed that the state can seek information like a woman can be asked to give details about the number of her children and simultaneously she cannot be forced to answer as to how many abortions she has had.

"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 court asked Venugopal as to what is difference if right to privacy is considered as a common law right or a fundamental right.

He responded by saying that the common-law right can be enforced by filing civil law suit and if it is considered as a fundamental right then the court can enforce it like any other writ.

Sibal sought intervention on behalf of the four states and said that right to privacy be declared as a fundamental right with some qualification.

"The technology today was advanced and the today's issues were not before the court when the judgements in question were passed declaring that right to privacy was not a fundamental right," he said.

Giving the example of the Global Positioning System (GPS), Sibal said that the movement of person can be tracked and misused by the state as well as non-state actors.

The arguments in the case remained inconclusive and the attorney general would resume advancing his submissions tomorrow.