Where’s right to privacy? You decide, Govt tells Supreme Court

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.

Written by Utkarsh Anand | New Delhi | Updated: July 23, 2015 12:56 pm
right to privacy, fundamental rights, fundamental right to privacy, Aadhaar card, Aadhaar biometric information, Aadhar card information, AG Mukul Rohatgi, Supreme Court, SC, india news, nation news Supreme Court

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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  1. U
    U
    Jul 23, 2015 at 3:50 pm
    Where is the question of privacy while the Thief Justices of India became qualified as the Thief Justice of India after compromising his privacy to s Mumbai model at a hotel in Mauritius and after opening a Swiss bank account there. Indians are filthy fools.
    Reply
    1. D
      Diplomat
      Jul 23, 2015 at 1:08 pm
      All laws are built around protecting fundamental rights of the citizen and that of the state. If privacy is not fundamental right ensured by consution then it will open pandora's box. So Govt cannot question and arrest peeping toms or hackers or photographers for alleged breach in someone's privacy?
      Reply
      1. D
        Diplomat
        Jul 23, 2015 at 1:10 pm
        If media starts exposing private lives of politicians, will govt have the same opinion?
        Reply
        1. A
          Ashish Biswas
          Jul 23, 2015 at 10:39 am
          Good decision by the government. The Supreme Court has been tasked correctly.
          Reply
          1. B
            bluemonkey
            Jul 23, 2015 at 1:35 pm
            this government will not mind putting a camera in the commode to snoop.
            Reply
            1. R
              rajnish
              Jul 23, 2015 at 1:08 pm
              Aadhaar like imaginations are encountered once in century , It is a supreme endeavor to quantify transparency for the larger purpose of recognition and empowerment of mes . May it not be diluted by powerful legal minds without attempting to comprehend the vision , which is neither the copy right nor patent of anyone except Mr. Nanadan Nilekani.
              Reply
              1. A
                Aneeb PA
                Jul 23, 2015 at 8:14 am
                Some stupids may say Right to privacy is not a fundamental right
                Reply
                1. L
                  Lovely
                  Jul 23, 2015 at 5:48 pm
                  You are right
                  Reply
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