Privacy a fundamental right, but it is conditional: Centre to Supreme Court
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Privacy a fundamental right, but it is conditional: Centre to Supreme Court

The court is also revisiting two judgments, in 1954 and 1962, that said privacy was not a fundamental right.

india Updated: Jul 27, 2017 00:26 IST
Bhadra Sinha
Bhadra Sinha
Hindustan Times, New Delhi
Supreme Court,JS Khehar,Aadhaar
The government wondered if the privacy rights of a select few “could destroy the rights of large group of others”, as it sought to link Aadhaar to right to livelihood.(Mint Photo)

Privacy is a fundamental right but it is conditional, the central government said in the Supreme Court on Wednesday and retreated from its previous position that the privilege isn’t guaranteed by the Constitution.

Attorney general KK Venugopal stated the government’s revised stand before a nine-judge bench led by Chief justice JS Khehar that will decide if the Constitution guarantees privacy to citizens.

“It is conditional right and should be determined on a case-to-case basis,” Venugopal said.

He argued that India’s “constitution-makers deliberately omitted privacy as a fundamental right”, but it is similar to the right to liberty that Article 21 of the statute guarantees. Therefore, every aspect of it cannot be elevated as a fundamental right.

Privacy rights became a hotly debated subject after the government decided people must provide their 12-digit Aadhaar identification number to get social benefits and to file tax returns.

“Privacy is a species of liberty, which is subordinate to the right to life. Aadhaar is to secure the poor’s right to life such as food and shelter,” Venugopal said.

The government wondered if the right to privacy of a select few could destroy the right to life of 270 million poor people in the country.

For its part, the court sought to know if the government’s stand was pitting the rich against the poor.

“Are you saying you can deny a right to someone for this reason?” justice J Chelameswar asked.

Another member of the bench, justice DY Chandrachud, gave examples how the poor can also benefit from privacy rights.

“You cannot impose sterilization in a slum area because there are too many kids there. In such a scenario the protection guaranteed to those opposing would be right to privacy. Similarly, this right would stand in the way if women are forced to participate in drug trials.”

“You say right to privacy is an elitist construct. But this right will apply to all,” he remarked.

The bench asked the attorney general why right to privacy cannot be derived from Article 21 if the right to health or environment can come from it.

The question whether privacy is sacred to the Constitution was referred to a larger bench after the government insisted it was not a fundamental right. The Centre had cited two previous top court verdicts that rejected the right.

The government also objected to petitions that the collection of biometric data under the Aadhaar law for the identification number breached people’s privacy.

The court decided to continue with the hearing and deliver an authoritative verdict, despite the government’s changed stand.

“For the sake of conceptual clarity, let’s decide it once and for all,” justice RF Nariman said.

Venugopal cautioned the bench that “every facet under the word liberty in the Constitution” would have to be declared a fundamental right in case privacy is given that status.

The attorney general illustrated his point by reading aloud a World Bank report that lauded the Aadhaar scheme and recommended developing nations to adopt it.

The UIDAI, the nodal agency issuing the Aadhaar number, adopted the Centre’s stand.

Additional solicitor general Tushar Mehta said he stands by the attorney general’s views. He will present his argument on Thursday.

First Published: Jul 26, 2017 17:34 IST