A nine-judge Constitution bench of the Supreme Court on Wednesday started hearing the arguments to determine whether the right to privacy is a fundamental right under the Constitution.
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The decision on the issue is necessary to decide the validity of the Aadhaar scheme which mandates citizens to part with their biometric details, a stand termed as unconstitutional by various petitions in the SC.
Questioning the petitioners’ plea that the right to privacy is non-negotiable, the bench headed by Chief Justice JS Khehar said that the right to privacy is not absolute and cannot be catalogued as it includes everything.
He further said that it cannot prevent the state from making laws imposing reasonable restrictions on citizens and in order to recognise privacy as a definite right, it had to first define it.
“How do we define privacy? What are it contents? Its contours? How can the state regulate privacy? What obligations do the state have to protect a person’s privacy?” justice DY Chandrachud, who is part of the nine-judge bench, asked the petitioners who have challenged the Aadhaar law on the ground that it affects the privacy of citizens. It said that an attempt to define the right to privacy may cause more harm than good.
The bench also comprises justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, Sanjay Kishan Kaul and S Abdul Nazeer. The bench is dealing with the limited issue of right to privacy and matters challenging the Aadhaar scheme would be taken up later by a smaller bench.
Senior advocate Gopal Subramanium, who led the arguments for petitioners, said that the rights to life and liberty are pre-existing natural rights.
“The right to liberty means the right to make personal choices, the right to develop one’s personality, one’s aura, one’s thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe. For all this, one needs privacy. So the right to liberty and lead a life of dignity includes the right to privacy,” he submitted.
He said that since the Indian Constitution draws inspiration from Universal Declaration on Human Rights (UDHR) and it is not possible that that the framers of the Constitution did not see it as a fundamental right when the right to privacy is already recognised right under UDHR.
Subramanium further argued that privacy is embedded in all processes of human life and liberty. The Preamble uses two expressions liberty and dignity. These two words are intended to convey an inherent right recognised by the Constitution and the privacy is embedded in both, he argued. He added that “liberty and dignity are heart and soul of the Constitution”.
Supporting him, senior counsel Shyam Divan said that “there is a global concern for right to privacy in the digital era” and “all the liberal democracies have some sort of right to privacy”.
Justifying their argument, the petitioners cited finance minister Arun Jaitley’s statement during the presentation of the Aadhaar Bill in Parliament last year that privacy is “probably” a fundamental right and a “part of individual liberty”.
Stating that right to privacy of the ordinary Indian cannot be invaded by any government, Divan further submitted that “in the internet age, a person should have control on how much he should put forward and not be compelled”. He said that there was hardly any data protection in this digital age, inevitably leading to a compromise in privacy.
He asked the bench to recognise the existence of the fundamental right to privacy as “two generations of Indians have grown up in a country where the Supreme Court has recognised the right as a fundamental right”.
In the context of Aadhaar, Divan said that demanding biometric details of citizens to grant them access to government welfare and benefits is a violation of bodily integrity. “A person’s body belongs to the state only in a totalitarian state,” he submitted.
The Centre, represented by attorney general KK Venugopal, submitted that right to privacy is merely a common law right and the Constitution makers “consciously avoided” making it a part of the fundamental rights.
Countering Venugopal, senior advocate Soli Sorabjee said that the right to privacy is not mentioned anywhere in Constitution but that does not mean that it does not exist. “Freedom of press is not expressly provided in the Constitution. But it is deduced from Article 19(1)(a). Like that, it can be deduced from other fundamental rights. Argument that it does not exist is fallacious,” he said.
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