Privacy is a right, agrees Centre, but is suspended by Big Brother when required

In an unexpected move, the Centre on 26 July conceded before the Supreme Court of India that “privacy” is a fundamental right. But it added a rider that "it is a qualified one".

Up till now, the central government has maintained throughout the debate on privacy in the Aadhaar case that privacy is only a common law right and not a basic right under the Indian Constitution.

The proceedings

Commencing the arguments for the Centre, Attorney General KK Venugopal told the nine-judge Constitution Bench presided by Chief Justice of India JS Khehar that “every aspect of it (privacy) does not qualify as a fundamental right, as privacy includes the subtext of liberty”.

Presently, Article 21 of the Constitution of India guarantees right to life and liberty as a fundamental right. It has been expanded by many decisions to include in its sweep and ambit the right to life with dignity. In this manner, a score of about 20 petitioners so far have argued that “privacy” is embedded within the sweep and ambit of “liberty”.

However, the central government argued that “Aadhaar (card) would not fall under the right to privacy”.

In fact, quite a few challenges out of the 20 odd petitions came on linking Aadhaar with Income Tax Returns (ITRs), PAN card and various other social welfare schemes, bank accounts, and even for a mobile phone sim card.

In this context Venugopal argued: “We can’t say every encroachment of privacy has to be elevated to the level of fundamental right. The claim to liberty has to subordinate itself to right to life of others”.

He also cited a World Bank observation that the identity system should be followed by every developing country.

“There is a right to privacy”, Venugopal argued, raising many eyebrows before he added that “it is a qualified right since the right to privacy consists of various aspects and is a sub-species of the right to liberty…. Every aspect of it will not qualify as a fundamental right”.

Big Brother rights

Interestingly, four non-BJP/NDA ruled states - Karnataka, West Bengal, Punjab and Puducherry - joined the issue today with former Congress union minister and senior lawyer Kapil Sibal leading the arguments on their behalf. Sibal argued that the 1962 judgment (which held privacy was not a fundamental right) could not have contemplated the kind of technology available now.

However ,the Bench had earlier observed that it was very difficult to define privacy in this electronic age where even most mobile phone have biometric passwords. More so, biometric attendance is a staple in the average office. Sibal said it is all the more the reason why privacy should be safeguarded and a mechanism should be developed for that.

In fact, what Venugopal argued was that even life and liberty are not unfettered rights. That’s why there is death sentence for heinous crimes and imprisonment for various other types of crimes. Like that privacy too cannot become unfettered or absolute right.

This clearly implies government or its agencies can infringe upon the privacy of a citizen if there is a need like investigation into any type of crime, terrorist plots, anti-national activities, unlawful assemblies, criminal conspiracies - in which case Big Brother would continue to watch.

However Venugopal’s argument is that the expression “privacy” along with “right to life and liberty” in Article 21 was consciously avoided. He said right to life transcends right to privacy.

The question of social justice

Even the right under Article 21 is not absolute, Venugopal contended. He even went on to argue that any claim to any right that would destroy the constitutional goals of social justice cannot be elevated to the status of fundamental right.

For example, a social welfare scheme should reach the section of the society it is intended for and hence in this sphere if one’s claim to right to privacy is affected there is nothing wrong. However, his argument is controversial as Venugopal contended that the right (privacy) has more credibility in developed countries but in a developing country an “amorphous” right can never be a fundamental right.

Additional Solicitor General (ASG) Tushar Mehta, who advanced arguments for the Unique Identification Authority of India (UIAI), echoed the argument that privacy could be considered as a fundamental right but not all aspects of privacy can be put under the fundamental rights category.

The arguments will continue tomorrow.