Privacy is a fundamental right with qualifications, Centre tells apex court

ANANTHAKRISHNAN G | IE  | New Delhi |  July 27, 2017 :THE CENTRE on Wednesday told the Supreme Court that while right to privacy is a fundamental right, it is a “wholly qualified right”, implying that it could be subject to reasonable restrictions. This is contrary to the government’s earlier stand that citizens cannot invoke privacy as a fundamental right as the Constitution does not provide for it.

“There is a fundamental right to privacy. But it is a wholly qualified right,” Attorney General K K Venugopal told a nine-judge Constitution Bench headed by Chief Justice of India J S Khehar. He, however, made it clear that the submission was not intended to cover the challenge to Aadhaar, meaning that those challenging it cannot claim that it violates right to privacy.

“Since the right to privacy consists of diverse aspects and is a sub-species of the right to liberty, every aspect of sub-species will not qualify as a fundamental right,” he said.  Venugopal said privacy, as a right, could not be seen in isolation, and was, in fact, a “conglomerate of rights” which had to be treated on a case-to-case basis. “It is not a homogenous right, but a conglomerate of privacy rights. Are we going to bunch them all together instead of examining each when the occasion arises,” he asked the bench, which includes Justices J Chelameswar,

S K Kaul, S A Bobde, R F Nariman, A M Sapre, R K Agarwal, D Y Chandrachud and Abdul Nazeer. “Different species of privacy exist, and all of them cannot be elevated to the status of fundamental rights,” he said.  The Unique Identification Authority of India (UIDAI), which is the implementing agency for Aadhaar, took the stand that “though it (privacy) is a right and an enforceable right, it is not a fundamental right”.

On the petitioners’ contention that the right to privacy flows from right to liberty enshrined in Article 21 of the Constitution, Venugopal said though the provision guarantees the right to life and personal liberty, the right to life outweighs the right to liberty.  “Between personal liberty and life, life dominates because there can be no liberty without life… If there is a conflict between rights, one that is traced to life and the other traced to liberty, the former will prevail. Wherever personal liberty exists as a right, it has to subordinate itself to the right to life of others,” he said, citing the example of Aadhaar which, he said, was a tool to improve the lives of the poor.

“The World Bank says there are 270 million people in India living below the poverty line. This is for their benefit… The World Band said Aadhaar is something every other country should follow… Nobody can say that giving their biometrics will violate their privacy,” said the AG.

Justice Chandrachud then asked if the AG was saying that “privacy is an elitist construct which pits one group of people against another”. Stating that “it is not like that”, the judge then asked if a state can “impose sterilisation because there are too many kids living in slums.” He added that “the protection here is the guarantee under the Constitution”.  Venugopal said “the right to life and liberty were not absolute either”, adding “that is why we have death penalty for gross crimes and incarceration for other crimes. One affects life, the other affects liberty”.

The bench said it would first have to decide whether the right to privacy existed in the Constitution in view of court judgments in the M P Sharma and Kharak Singh cases, that held it was not a fundamental right. The challenge to Aadhaar will then be taken up by another five-judge bench, it said.

Justice Chandrachud said one “cannot deny the obligation to submit some data to the state. But this has to be under a law, the law must ensure that the data so submitted is protected from private intrusion and will be used only for the purpose for which it is given”. “If you say privacy is not a fundamental right, anything can be done to it (data),” said the judge, adding that “constitutional control will help”.

On being prodded by the Bench, the AG explained that he was “not saying that some species (of privacy rights) may not qualify as fundamental rights… Some aspects are protected, some are not. It has to be tested, depending on the circumstances in which it arises.”  The CJI then pointed out that “the question of circumstances in which it arises is possible only when privacy is a fundamental right”.

Earlier in the day, five more non-BJP ruled states — West Bengal, Punjab, Karnataka, Puducherry and Himachal Pradesh — impleaded themselves in the case, defending the claim that privacy is a fundamental right. Appearing for the first four, senior counsel Kapil Sibal touched on the issue of data protection and said there was a need for a law for this. “There has to be a data protection plan in this country emanating from the right to privacy,” he said, adding that “privacy will also apply against hackers”.

Sibal agreed that “privacy can never be an absolute right” but expressed concern about data furnished to the state being shared by agencies.  To this, Justice Chandrachud said, “I give financial data about myself while filing IT returns. The Serious Fraud Office or RBI may want it,” indicating that such actions were natural.  The senior counsel then said “the extent of (state) interference must be proportional to the need for such interference”.

Justice Nariman said if the right to privacy is to be traced to Article 19 or 21, the mandate of these provisions may require the state to step in where non-state actors are involved.  The hearing will continue on Thursday.