Right to privacy not absolute, says SC: Petitioners argue it's a fundamental right

Is the right to privacy a fundamental right?

Despite several arguments made by former solicitor general Gopal Subramanium in favour of privacy before the nine-judge bench constituted to decide on the matter, the Supreme Court of India observed on 19 July that privacy isn't an absolute right.

According to the apex court, privacy is subject to reasonable restrictions.

Counsel for the petitioners who have claimed that Aadhaar violates the right to privacy, Subramanium said that the right to privacy can’t be separated from the right to liberty that is enshrined in Article 21 of Constitution.

“If liberty is a fundamental value of our Constitution, then privacy is part of liberty,” he argued before the bench. The right to life and liberty is a pre-existing natural right, he said. He likened this to include right to privacy under right to life and liberty.

Subramanian, arguing in favour of privacy, placed it alongside the concepts of liberty and dignity

Quoting Justice Subba Rao in the Kharak Singh vs the state of Uttar Pradesh case from 1964, Subramanian called privacy a facet of liberty. He argued that all the fundamental rights guaranteed under the Constitution - right to free speech, freedom of conscience and religion - include the right to privacy as well.

Subramanian said the state is obligated to protect citizens’ right to privacy like their other fundamental rights.

The bench, headed by Chief Justice of India (CJI) JS Khehar, will continue to hear arguments on the matter on 20 July.

The various arguments

According to the petitioners, as per the United Nations’ declaration, privacy is an inalienable fundamental right. Their contention is that data collected to issue an Aadhaar card to a citizen – iris scans and fingerprints – violate one’s privacy.

The Centre, meanwhile, has made it clear that there is no such right in the chapter on fundamental rights in the Constitution. More so, its arguments rely heavily upon two decisions made by the apex court in 1950 and 1962 on the matter that came to the conclusion that the right to privacy is not a fundamental right.

The Central government relies on these two decisions to reinforce the point that linking Aadhaar cards to various schemes would not violate the fundamental rights of a citizen. 

That is exactly why a larger nine-judge bench has been given the task of deciding upon the matter.

The petitioners say, as per the UN’s declaration, privacy is an inalienable fundamental right

At present, there are around 22 petitions challenging Aadhaar and its forced linkage with Permanent Account Number (PAN) card for income tax and other taxation purposes, social welfare schemes, subsidies like cooking gas and bank accounts.

The petitioners, who include one retired judge, pointed out Finance Minister Arun Jaitley’s statement in parliament on privacy while moving the Aadhaar Bill in March last year. Jaitley had stated that the government was “moving on a premise that privacy is an individual right”.

However Jaitley, while moving the bill in Rajya Sabha said: “Privacy is not an absolute right and is subjected to restriction established by law on a fair and just procedure”.

It has been 55 years since the right to privacy was last debated in Indian courts

For that matter, no right is an absolute right and there are always reasonable restrictions. “You have the freedom to rotate your walking stick but it ends when it touches the nose of the fellow walker,” as the centuries old saying goes.

When the government countered Subramanium’s arguments through attorney general KK Venugopal, Justice J Chelameswar observed that “even freedom of press is not explicit in the Constitution, but courts have interpreted right to freedom of speech and expression to include freedom of press.”

It has been 55 years since the right to privacy was last debated in Indian courts.

For now, it looks like the nine-judge bench, which was formed solely to come to a final decision on whether Aadhaar infringes upon the privacy of its citizens, may also take up other issues that the earlier five-judge bench had said would be taken up by an “appropriate” bench.

But if this bench decides that privacy is a fundamental right under Article 21, then the other issues will go to such an ‘appropriate’ bench.

Edited by Aleesha Matharu