Privacy is a fundamental but wholly qualified right: Centre

Chief Justice Khehar sums up Centre’s arguments as also saying that not every aspect of privacy is a fundamental right and it “depends on a case-by-case basis.”

July 26, 2017 05:29 pm | Updated December 03, 2021 12:37 pm IST - NEW DELHI

 The petitioners argued that right to privacy is part of Article 21, the right to life, and interspersed in Article 19, though not expressedly said in the Constitution.

The petitioners argued that right to privacy is part of Article 21, the right to life, and interspersed in Article 19, though not expressedly said in the Constitution.

The Centre on Wednesday told the Supreme Court that privacy was indeed a fundamental right, but a “wholly qualified” one.

This led a nine-judge Constitution Bench headed by Chief Justice of India J.S. Khehar on Wednesday to sum up Attorney General K.K. Venugopal’s submission thus: “You are saying that right to privacy is a fundamental right. But not every aspect of it [privacy] is a fundamental right. It depends on a case-to-case basis.”

Mr. Venugopal agreed to the court’s interpretation of the government stand on privacy.

Earlier the court kept prodding Mr. Venugopal to make the government’s position clear. At one point, Chief Justice Khehar even said that the reference to the nine-judge Bench could be closed if the Centre agreed that privacy was a fundamental freedom.

“Petitioners had argued that there is a fundamental right to privacy. You [Centre] had stalled them by saying that privacy is not a fundamental right. You quoted our eight and six judges’ Benches’ judgments to claim privacy is not a fundamental right. So, the five-judge Bench hearing the Aadhaar petitions referred the question ‘whether privacy is a fundamental right or not’ to us. Now if you are saying that privacy is a fundamental right, shall we close this reference right now itself?” Chief Justice Khehar asked Mr. Venugopal.

The Attorney General explained to the Bench that the government did not consider privacy to be a single, homogenous right but rather a “sub-species of the fundamental right to personal liberty and consists of diverse aspects. Not every aspect of privacy is a fundamental right.” Some aspects of privacy were expressly defined in the Constitution, while some were not.

Mr. Venugopal said there was a “fundamental right to privacy. But this right is a wholly qualified right.”

He submitted that citizens could not agitate against Aadhaar, saying it was a violation of their right to privacy. And as far as Aadhaar was concerned, privacy was not a fundamental and absolute right. The state could subject privacy to reasonable restrictions in order to preserve the right to life of the masses. He said an elite few could not claim that their bodily integrity would be violated by a scheme which served to bring home basic human rights and social justice to millions of poor households across the country.

At this, Justice Rohinton Fali Nariman retorted: “But Mr. Venugopal, don’t forget the little man’s right to privacy, everything about right to privacy is not connected to the Aadhaar issue.”

To this, Mr. Venugopal argued that privacy was submissive to the fundamental right to life under Article 21. Aadhaar was a measure by the state to ensure the teeming millions of poor in the country were not reduced to lead an “animal existence.”

“Petitioners have divided privacy into the realms of the body and mind. They say the three aspects of privacy include bodily integrity, dissemination of personal information and the right to make own choices. Tell us which among these aspects do not fit the Bill under Article 21 [right to life],” Justice Nariman asked.

"You are wrong to say that privacy is an elitist construct. Privacy also affects the masses. For example, there is an increase in instances of cervical cancer among women in impoverished families. Right to privacy of these women will be the only right standing in the way of State subjecting them to a ‘health trial’ or, say, compulsory sterilisation," Justice D.Y. Chandrachud pitched in.

As an aside, Justice Chandrachud suggested a middle way in the Aadhaar conundrum, saying personal data could be handed over to the state, provided it collected the personal information under a statutory law; had facilities to keep them secure; and used the data only for a legitimate purpose.

But Chief Justice Khehar intervened, saying “we [the nine judges] are here to decide whether there is at all a fundamental right to privacy... The question whether Aadhaar violates privacy will be decided later by the five judges. So now you [Centre] have said privacy is a fundamental right,” the Chief Justice told Mr. Venugopal.

At this, Additional Solicitor General Tushar Mehta intervened for some of the States, saying he wanted to argue that “privacy is a right but not a fundamental right.”

“But he [Mr. Venugopal] has already said that privacy is a fundamental right,” Chief Justice Khehar responded to Mr. Mehta.

The hearing is to continue on Thursday.

Top News Today


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide by our community guidelines for posting your comments.

We have migrated to a new commenting platform. If you are already a registered user of The Hindu and logged in, you may continue to engage with our articles. If you do not have an account please register and login to post comments. Users can access their older comments by logging into their accounts on Vuukle.