Changing its stance, the Centre on Wednesday conceded before the Supreme Court that privacy is indeed a fundamental right. However, it noted all aspects of privacy such as liberty could not qualify as fundamental rights. Attorney general KK Venugopal told the nine-judge Constitution bench that privacy may qualify as a fundamental right, but it is secondary to the right to life which includes right to food, education and employment. Earlier, the government had taken the view citizens had no fundamental right to privacy. Arguing that other fundamental rights like food, clothing and shelter override the right to privacy, Venugopal said privacy was not a basic right in the Constitution. Therefore, he said, it could not be applied to the Aadhaar programme for which biometric details like fingerprints and iris scans of citizens are recorded. “Every aspect of it does not qualify as a fundamental right, as privacy is a subset of right to personal liberty. But this right of privacy has many sub-species, which cannot be elevated to the level of a fundamental rights; therefore, this aspect invoked to challenge Aadhaar doesn’t qualify,” the attorney general observed. According to government, many social benefits are given through Aadhaar. “One cannot say that giving my biometrics is violative of my privacy. As far as Aadhaar is concerned, privacy is not a fundamental and absolute right, the AG said.
“State can subject privacy to reasonable restrictions in order to preserve the right to life of the masses,” Venugopal said. He added that privacy as a liberty cannot be claimed to deny millions right to life including food, shelter and employment under Aadhaar. Defending the Aadhaar programme, the top law officer further said the unique ID scheme had been praised by the World Bank and was being held up as an example for developing countries. “We can’t say every encroachment of privacy is to be elevated to a fundamental right. The claim to liberty has to subordinate itself to right to life of others,” Venugopal said. “Don’t apply US judgement to privacy. India has people below poverty line and the middle class… So that needs to be considered,” the AG said. He further noted the right to privacy had more credibility in developed countries that are socially, economically and politically developed, but not India.
Earlier in the day, the government argued that privacy was more of a social notion than a jural concept and there was no need to recognise an independent right to privacy. The AG further said that defining contours of privacy was not possible as “privacy is as good a notion as pursuit of happiness”. Stating that right to privacy was not a “homogeneous affair”, he said that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest.
Venugopal said that the government did not consider privacy as a single, homogeneous right but rather as a bunch of rights spread over several Articles of the Constitution. Some aspects of privacy are expressly defined in the Constitution, while some are not, he added. Meanwhile, four non-BJP ruled states — Karnataka, Punjab, Puducherry and Bengal — joined the campaign for privacy with other petitioners. Senior advocate Kapil Sibal, representing the four states, argued that in the light of technological advancement, the court was required to take a fresh look on the right to privacy and its contours in the modern day.
“Privacy cannot be an absolute right. But it is a fundamental right. This court needs to strike a balance,” he submitted before the bench. The Supreme Court had set up a nine-judge bench last week to decide whether right to privacy can be declared a fundamental right under the Constitution. The Centre had on July 19 submitted before 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. The government will continue its submissions on Thursday.