Privacy Not a Fundamental Right, Some Aspects May Be: Centre to SC

The statement was made as arguments commenced on the question whether right to privacy is a fundamental right.

The Centre on Wednesday began its arguments before the Supreme Court on why the right to privacy is not a fundamental right.

Attorney General KK Venugopal, representing the Central Government, told a nine-judge constitution bench headed by Chief Justice JS Khehar that privacy covers a number of different “sub-species”, and not all of these could be protected as fundamental rights.

According to him, there is no fundamental right to privacy on its own, but certain facets of privacy could be protected under other fundamental rights – for instance, bodily intrusion could violate the right to life. The lawyer for the UIDAI also asserted that there is no fundamental right to privacy in the Constitution.

The government’s arguments today had two broad threads: that privacy was too vague a concept; and that a right to privacy in a developing country would conflict with the overriding public interest of programmes for upliftment of the poor.

Govt Argument 1: ‘Privacy’ Too Vague

First, the argument from the Centre was that the ‘right to privacy’ was too amorphous a concept to be considered a fundamental right, and could at best be considered a common law right. It was argued that the Constitution makers specifically left privacy out of the Constitution because they couldn’t classify it.

Venugopal argued that contrary to the arguments by the petitioners, privacy is not a homogeneous affair. If it were considered a fundamental right, all the disparate sub-species that fell within it would be automatically elevated to the status of fundamental right.

It was argued that this was problematic since the protections for fundamental rights are much stronger, with greater remedies, which would not be appropriate to all the threads of privacy. Each of these would need to be argued on a case-to-case basis, not lumped under the protective umbrella of a fundamental right.

Also Read: Four Non-BJP States Oppose Centre, Move SC For Right to Privacy

Govt Argument 2: Privacy Not Relevant in a Developing Country

The second strand of argument from the Centre revolved around the problems relating to social justice that India faces, and how privacy being a fundamental right could affect these.

The Attorney-General spoke at great length about how a programme like Aadhaar was essential for development and how it was absurd for a broad right of privacy to be invoked to scupper this. It was argued that the right to privacy was an elitist, foreign concept that would affect only a handful of people in a developing country.

Judges Not Impressed?

The Supreme Court questioned the Attorney-General strongly on both strands of argument, finding that the Centre’s arguments did not in fact presuppose privacy being a fundamental right. This was particularly important in relation to the argument that it was too vague, as the Court felt that there would be no problem with recognising a general right to privacy which could then be examined in subsequent cases.

When pressed by the bench, Venugopal appeared to admit that privacy was a fundamental right that could be qualified. However, when this was put to him, he denied that he was accepting every aspect of privacy as fundamental rights.

The judges did not also seem too pleased by Venugopal’s continuous references to Aadhaar. This came to a head at the end of the day, when he was arguing that he did not want the Supreme Court’s judgment to prevent the government from later arguing that facets of privacy relating to Aadhaar were not fundamental rights.

The judges reminded Venugopal that he and then Attorney-General Mukul Rohatgi had had the chance to do this almost two years ago, but chose to instead insist on a decision by a Constitution Bench regarding privacy as a whole (which led to the reference that was the basis for the current hearings).

Justice Nariman, who had been a fiery presence throughout the day’s proceedings, concluded the day’s proceedings by promising to consider all aspects of the right to privacy and give a comprehensive judgment, for “conceptual clarity” for the nation.

The Attorney-General will continue the Union of India’s arguments tomorrow, and we may also see submissions by the lawyers for the UIDAI.

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