The Supreme Court on Wednesday questioned the government’s stand that right to privacy is not a fundamental right. “If a man is not safe in his own house, then what remains in Article 21 (right to life and liberty)? Where is the liberty then? If privacy is not there in liberty, then what else can be there? To say that it (right to privacy) is not at all there will not be right. We will not accept it,” said a three-judge bench led by Justice J
The bench was responding to a submission by Attorney General Mukul Rohatgi, who said the Constitution does not state that right to privacy is a fundamental right, and the issue needs to be considered by a Constitution Bench.
According to Rohatgi, though there is right to privacy, its position remains unclear. “No judgment explicitly cites right to privacy as a fundamental right. It is not there under the letters of Article 21 either. If this court feels that there must be clarity on this subject, only a Constitution Bench can decide,” he said.
The government’s arguments came in defence of the Aadhaar card. A batch of petitions have claimed that collection and sharing of biometric information, as required for the Aadhaar card, is a breach of the “fundamental” right to privacy.
Whether privacy is a fundamental right or not must first be settled authoritatively, said Rohatgi, as he supported the collection of biometric data. Pointing out that interception of phone calls is legally permissible under certain circumstances, he said there is nothing wrong in collecting biometric data if there is a legal regime to justify it.
Rohatgi said the two Constitution Bench judgments, in 1954 and 1963, which held that right to privacy is not a fundamental right, has not been overruled by any subsequent judgment by a larger bench.
He sought reconsideration of all Supreme Court judgments in the last two decades which defined right to privacy as a fundamental right. As per these judgments, right to privacy was read as a fundamental right relating to life and liberty (Article 21) or the right to free speech, movement and peaceful association (Article 19).
Rohatgi said the smaller benches of two or three judges could not decide the matter, and the issue should be sent to a nine-judge bench for clarity. The arguments will resume on Thursday.