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.
The acknowledgement from the Centre came after several hours of walking on the very brink of conceding that right to privacy is a fundamental right.
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.”