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Right to privacy is not absolute: Supreme Court observes while Aadhaar hearing

By FnF Correspondent | PUBLISHED: 19, Jul 2017, 19:02 pm IST | UPDATED: 19, Jul 2017, 20:28 pm IST

Right to privacy is not absolute: Supreme Court observes while Aadhaar hearing New Delhi: The right to privacy is not absolute and cannot be catalogued as it includes everything, a nine-judge bench of the Supreme Court said today.

The top court is revisiting the question of privacy, 55 years after the Supreme Court decided that privacy is not a basic right for citizens. The decision of the judges is pivotal to petitions that challenge making the Aadhaar scheme mandatory for millions of Indians.

The bench will continue hearing matter tomorrow.

Senior counsel Gopal Subramanium told the Supreme Court that the right to privacy is a pre-existing natural right which is inherent in the Constitution though not explicitly mentioned.

Subramanium is leading the argument on behalf of the petitioners who have challenged the Aadhaar scheme on the grounds of its being violative of the right to privacy.

Subramanium said that "The right to privacy is recognised as a fundamental right under Article 21 of the Constitution. The concept of privacy is embedded in liberty as well as honour of a person."

His arguments came as the apex court on Wednesday commenced hearing on the question whether right to privacy was a fundamental right.

A nine-judge constitution bench headed by Chief Justice Jagdish Singh Khehar is examining the nature of privacy as a right in context of two judgments of 1954 and other in 1962 which had held that right to privacy was not a fundamental right.

Besides, Chief Justice Khehar, other judges on the bench are Justice J. Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul and Justice S. Abdul Nazeer.

Taking forward the argument that privacy is a fundamental right, senior counsel Shyam Divan told the bench that even Union Finance Minister Arun Jaitley during a debate on the Aadhaar Bill in the Rajya Sabha had asserted that privacy was a fundamental right linked to right of liberty under Article 21 of the Constitution.

Responding to a question during debate in the Rajya Sabha on March 16, 2016, Finance Minister Jaitley had said that the top court was considering the conflicting judgments on privacy and whether it was a fundamental right or not.

Having said that Jaitley told the Rajya Sabha that "The present bill (Aadhaar) pre-supposes and is based on a premise that it is too late in the day to contend that privacy is not a fundamental right. So I do accept that probably privacy is a fundamental right."

Jaitley had told the Rajya Sabha that "It is now accepted that privacy is a part of individual liberty" and referring to Article 21 he said "Let us assume that privacy is a part of liberty and no person shall be deprived of privacy without due process of law".

Having quoted the Union Finance Minister in support of his contention that privacy was a fundamental right, Divan said that in the past 40 years since the mid-1970s different benches of the top court have consistently held that privacy was a fundamental right.

He urged the bench to reaffirm this right.

Here are the big developments in this story:

  •     Petitioners today held up Finance Minister Arun Jaitley's statement in parliament on privacy while moving the Aadhaar Bill in March. He had said that the government "was moving on a premise that privacy is an individual right aside from the court judgement. "Is privacy a fundamental right or not? The present bill presupposes and is based on a premise, and its too late in the day to contest that privacy is not a fundamental right. Privacy is not an absolute right, which is subjected to a restriction established by law on a fair and just procedure," he had said in the Rajya Sabha.
  •     Representing the petitioners, senior lawyer Gopal Subramanium argued that the rights to life and liberty are pre-existing natural rights. "Privacy is embedded in both liberty and dignity. It is not a twilight right but the heart and soul of the constitution," he said.  
  •     The centre has said in court that the right to privacy is not in the constitution and is not a part of the right to life.
  •     Yesterday, the government was told by one of the judges, Justice J Chelameswar, "Even freedom of press is not explicit in the constitution but courts have interpreted right to free speech includes freedom of expression of press."
  •      The government's stand on privacy was criticized by opposition leaders like CPM's Sitaram Yechury, who tweeted this morning: "We have a government which believes in the right to privacy for top loan defaulters from being named, but not in Privacy for ordinary citizens. Right to Privacy of the ordinary Indian cannot be invaded by any government. Every Indian's dignity is important."
  •      An eight-judge bench in 1954 and six-judge bench in 1962 had both ruled that there is no right to privacy. Whether they were correct should be decided by a larger bench of nine judges, the top court said. After the mid-1970s, benches of two and three judges have consistently taken the position that privacy is indeed a fundamental right.
  •     A batch of petitions argues that whether privacy is a fundamental right is key to the challenge to the validity of the Aadhaar scheme that records personal data of millions of Indians.
  •     The petitioners say data like iris scans and fingerprints taken by the state violates citizens' privacy. In 2015, then Attorney General Mukul Rohatgi, representing the government, told the Supreme Court that Indian citizens don't have a fundamental right to privacy under the constitution - an argument he repeated subsequently.
  •      In past orders, the Supreme Court has expanded the right to life to include the right to clean air and even sleep.
  •     If it does rule that privacy is a fundamental right, then all cases relating to the Aadhaar scheme will go back to the original three-judge bench or five-judge bench.
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