SC wonders whether privacy could be an absolute right

July 20, 2017 12:00 am | Updated 04:45 am IST - NEW DELHI

State cannot be prevented from imposing reasonable curbs, observes court

Right to privacy is not absolute and cannot prevent the state from making laws imposing reasonable restrictions on citizens, the Supreme Court observed on Wednesday.

The court said ‘right to privacy’ is in fact too ‘amorphous’ a term. To recognise privacy as a definite right, it has to first define it. But this would be nearly impossible as an element of privacy pervades all the fundamental rights enshrined in the Constitution.

“How do we define privacy? What are its contents... Its contours? How can the state regulate privacy? What obligations do the state have to protect a person’s privacy?” Justice Chandrachud asked the petitioners, who have challenged the Aadhaar law on the ground that it affects the privacy of citizens.

More harm

The court said that an attempt to define the right to privacy may cause more harm than good.

An exhaustive cataloguing by the court of what all constitutes privacy may limit the right itself, Justice Chandrachud observed.

Justice Chandrachud is part of a nine-judge Constitution Bench led by Chief Justice of India J.S. Khehar examining a reference on the question whether privacy is sacred, fundamental and an inviolable right under the Constitution.

‘A common law’

Attorney-General K.K. Venugopal has already submitted in the Supreme Court that right to privacy is merely a common law right and the Constitution makers “consciously avoided” making it a part of the fundamental rights.

The decision of the nine-judge Bench on whether privacy is a fundamental right or not will be pivotal to the petitioners’ challenge that Aadhaar, which mandates citizens to part with their biometrics, is unconstitutional.

In the day-long hearing before a packed courtroom, the Bench questioned the petitioners’ plea that right to privacy is non-negotiable. “If people have put themselves in the public realm using technology, is that not a surrender of their right to privacy?” Justice Chandrachud asked.

The court’s questions came even as petitioners banked on Union Finance Minister Arun Jaitley’s statement in Parliament that privacy is ‘probably’ a fundamental right and ‘part of individual liberty’. The statement was made on March 16, 2016 during the presentation of the Aadhaar Bill. Senior advocate Shyam Divan, for the petitioners, along with advocates Vipin Nair and P.B. Suresh, submitted that a person should have the right to ‘informational self-determination’. “In the Internet age, a person should have control on how much he should put forward and not be compelled,” Mr. Divan submitted. He said there is hardly any data protection in this digital age, leading to a compromise in privacy.

But Justice Chandrachud observed that right to privacy cannot be linked to data protection. He said this is the age of ‘big data’, and instead of focussing on privacy, steps need to be taken to give statutory recognition to data protection.

Senior advocate Gopal Subramanium, who opened the arguments for the petitioners, responded that the constitutional right to privacy does not mean mere protection from the state’s ingress.

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