Is right to privacy a fundamental right? The NDA government raised this question in the Supreme Court Wednesday, and went on to state that the Constitution does not assign right to privacy that status.
The government also asked for reconsideration of all judgments of the Supreme Court in the last two decades, which defined right to privacy as a fundamental right.
As per the various judgments, right to privacy was read as fundamental rights relating to life and liberty (Article 21) or the right to free speech, movement and peaceful association (Article 19).
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Arguing before a three-judge bench led by Justice J Chelameswar, Attorney General Mukul Rohatgi asked the court to constitute a nine-judge bench to decide what he said is a disputed question of law and constitutional provisions.
Defending the validity of the Aadhaar card, Rohatgi said that since a batch of petitions contended that collection and sharing of biometric information was a breach of their “fundamental” right to privacy, it must first be settled authoritatively whether privacy is a fundamental right.
The top law officer said a nine-judge bench was required since it was an eight-judge bench which had ruled in 1954 that the right to privacy cannot be a fundamental right. That judgment held that when the Constitution-makers chose not to prescribe for constitutional limitations by recognising the fundamental right to privacy, “there is no justification for importing into it, a totally different fundamental right by some process of strained construction”.
Rohatgi also read out from another SC judgment by a six-judge bench in 1963, holding that “the right of privacy is not a guaranteed right under our Constitution”.
He then cited judgments on the subject since the 1990s which noted that the right to privacy can be construed as a fundamental right subject to certain restrictions and circumstances. “These judgments then diluted what was held earlier. The yardstick for inferring it as a fundamental right changed from compelling public interest to harm to private interests, including life, health, safety. Interestingly, all these judgments were by smaller benches,” Rohatgi said.
He said that once an eight-judge bench had held this not to be a fundamental right, the smaller benches of two or three judges could not have held otherwise without referring it to a larger bench. “It was completely wrong for smaller benches to say the right to privacy can be read into Articles 21 or 19. Further, it was also not open for the courts to carve out certain rights not envisaged by the Constitution,” said Rohatgi, adding that the divergent views warranted a reference to a larger bench.
Appearing for the petitioners that have challenged the validity of the Aadhaar card, senior advocate Shyam Divan criticised the Centre’s arguments and said the Constitution has to be read as a dynamic document, requiring interpretations to suit modern times. He also pointed out that the government has admitted in its affidavit that the right to privacy is a fundamental right, hence it was too late to question this now.
But the bench asked Divan if it will not be proper to have this issue decided authoritatively once and for all when a “serious hiatus in the law” has been pointed out by the government. The bench will continue hearing the arguments by Divan, who is opposing the reference.
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