Aadhaar debate: Centre tells SC that not every aspect of right to privacy is fundamental

During the hearing in the Supreme Court on the arguments of four states that are not ruled by BJP, including Karnataka and West Bengal on the privacy issue on Wednesday, Attorney General KK Venugopal stated that privacy as a fundamental right was ‘deliberately avoided’ from Article 21.

“Privacy, as a fundamental right, could have been mentioned in 21 but has been omitted. This was deliberate,” he said.

AG: Under Article 21, the concept of deprivation of rights is inbuilt, subject only to the condition that it be in accordance with law.

— Gautam Bhatia (@gautambhatia88) July 26, 2017

He also argued that the right to life transcends the right to privacy. “Claims to privacy that would destroy constitutional goals of social justice cannot be elevated to the status of a fundamental right,” he said in the hearing. “The rights to life and personal liberty are neither unqualified nor absolute,” Venugopal said.

The four states moved the Supreme Court seeking to intervene in the ongoing hearing on the issue of whether the right to privacy can be declared as one of the fundamental rights under the Constitution.

Besides Karnataka and West Bengal, two Congress-led states of Punjab and Puducherry took a stand opposite to the central government, which had said that the right to privacy is a common law right and not a fundamental right.

One of the more controversial comments that the attorney general made in the hearing was that the right has more credibility in ‘developed countries that are socially, economically and politically developed’, adding that in a developing country like India something as ‘amorphous’ as the right to privacy can never be a fundamental right. To this statement, the Supreme Court replied, saying, “Privacy isn’t an elitist concept, it’ll affect large masses. The state can’t get blanket sanction to do whatever it wants.”

SC on Right to Privacy: Privacy isn't an elitist concept,it'll affect large masses. State can't get blanket sanction to do whatever it wants pic.twitter.com/rBPO68Izgq

— News18 (@CNNnews18) July 26, 2017

Additional Solicitor General Tushar Mehta, appearing for the Unique Identification Authority of India (UIDAI), the entity that issues Aadhaar cards, also argued that the right to privacy may be considered a fundamental right, but all aspects of privacy can’t be put under fundamental rights category.

UIDAI's counsel stands up and says that privacy is a right but not a fundamental right.

— Gautam Bhatia (@gautambhatia88) July 26, 2017

Senior advocate and Congress party leader Kapil Sibal, representing the four states that oppose the stance of the Centre, initiated his arguments before a nine-judge Constitution bench headed by Chief Justice JS Khehar and said that in the light of technological advancement, the court needs to take a fresh look on the right to privacy and its contours in the modern day.

Live Law  has carried the written submission made by Sibal. In the submission, he states that right to privacy is a “quintessential right flowing out of the bouquet of rights under enshrined under Article 21 .” He goes on to say that “present societal context where advances in technology and communication have transformed the relationship between stakeholders inter se and in particular the relationship between the State and its citizens.” The senior lawyer also urged the State to formulate a ‘robust data protection law’ to ensure that information of the citizens is secure.

“Privacy cannot be an absolute right. But it is a fundamental right. This court needs to strike a balance,” he concluded before the bench, which also comprised justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer apart from the chief justice.

Hearings related to the right to privacy and Aadhaar cards will resume on Thursday, where the respondents i.e. the State will resume its arguments. According to lawyer Prasanna S, hearings are likely to take place until next week.

To continue tomorrow. Bench rises. Respondents will take the whole of tomorrow. Likely to continue until next week.

— Prasanna S (@prasanna_s) July 26, 2017

The apex court had on 18 July set up the Constitution bench after the matter was referred to a larger bench by a five-judge bench.

The petitioners had claimed that collection and sharing of biometric information, as required under the Aadhaar scheme, was a breach of the “fundamental” right to privacy.

The Centre had on 19 July submitted in the apex court that right to privacy cannot fall in the bracket of fundamental rights as there are binding decisions of larger benches that it is only a common law right evolved through judicial pronouncements.

With inputs from agencies