Not every aspect of privacy is fundamental right, Centre tells SC

The Centre on Wednesday ceded some of its ground before the Supreme Court to contend that the right to privacy is a fundamental right but its various aspects may not qualify to be declared as such a right.

“There is a fundamental right to privacy but it is a wholly qualified right. Since right to privacy consists of diverse aspects and it is a sub-specie of liberty, every aspect of the sub-species will not qualify as a fundamental right,” Attorney General K K Venugopal submitted before a nine-judge bench presided over by Chief Justice J S Khehar.

Initially, the top law officer maintained that “something as amorphous as privacy” cannot be assigned the status of a fundamental right. “The right to life transcends the right to privacy... nobody can be heard to say my right to personal liberty, which may be claimed as repository of right to privacy, is absolute. Even the right to life is not absolute. State can take it away through procedure established by law. That’s why you have death sentence which takes away the right to life, and you have incarceration, which curtails liberty,” he contended.

In post-lunch arguments, Venugopal submitted that there is no vestige of privacy in the instant matter as contended by Aadhaar challengers.

“In a country where people were forced to sell their daughter for Rs 25,000 to Rs 50,000, are you going to allow a handful of people to oppose giving their biometrics in the name that it violated their body integrity,” he argued.

He said he was ready to argue before a five-judge bench the plea of violation of privacy vis-a-vis Aadhaar. The nine-judge bench, however, said, “So, now you concede that there is a right to privacy. There is a fundamental right but it can be circumscribed and it will depend on case-to-case basis.”

“Not everything is Aadhaar-centric... think about the little poor man too. Don’t forget his right to privacy,” the bench said. The bench also cited forced sterilisation during the Emergency. To this, Venugopal said the Emergency should be thrown out of the window and forgotten. It cannot be treated as a precedent for any good or bad reasons.

The bench asked the A-G if he was ready to make a statement that fundamental right to privacy exists, it would close the case forthwith. As Venugopal submitted he preferred to argue further, the bench said, “For conceptual clarity on the subject, we will give a judgment.”

The court also reminded Venugopal that the matter was being examined by the nine-judge bench after Union government cited previous two judgments of the SC declaring that the right to privacy was not a fundamental right.

Additional Solicitor General Tushar Mehta, appearing for the UIDAI that issued Aadhaar numbers, submitted that the right to privacy is a right, an enforceable right, but it cannot be declared as a fundamental right.

At the outset, as many as five states, including Karnataka, sought to intervene in the matter, supporting a group of Aadhaar challengers. They sought a declaration from the top court that the right to privacy is a fundamental right.

Senior advocate Kapil Sibal, representing Karnataka, West Bengal, Punjab and Puducherry, submitted that the right to privacy is an inalienable natural right, which finds its manifestation in different parts of the Constitution.

He said in the present age, technology has become all-pervasive as well as all-invasive. It has to be ensured that precincts of my house is not invaded, he said. Congress-ruled Himachal Pradesh also supported Sibal.