New Delhi: Arguments before a nine-judge Constitution Bench of the Supreme Court on whether right to privacy constitutes a fundamental right are being heard with rapt attention. But the proceedings Tuesday had their light moments when Additional Solicitor General Tushar Mehta engaged the judges.
The Supreme Court continued to subject the debate on constitutional status for the right to privacy to close scrutiny, saying economic rights of citizens and provision for food and other essential items could never be a ground to undermine basic fundamental rights.
This observation came when senior advocate C A Sundaram, appearing for the Maharashtra government, reiterated the Centre's stand that right to privacy would always take a back seat when it came to Aadhaar, which enabled the government to secure right to food, a more important right, for millions of poor living below poverty line. "What is better— two square meals or right to privacy," he asked.
Justice D Y Chandrachud, part of a nine-judge bench headed by Chief Justice J S Khehar, asked: "Does it mean the cherished constitutional rights are subservient to certain economic developments? Can two square meals be promised in return for barring people from protesting, forming association or giving up other fundamental rights? This can never be. We must guard against this tendency."
Justice J Chelameswar said: "It is a very cruel choice one can give to citizens - two square meals or right to privacy."
Justice R F Nariman said: "In the era when personal liberty and fundamental rights are being given a wider meaning, how can you argue for contracting the width of fundamental rights?"
Sundaram repeatedly clarified that he was not against right to privacy as a statutory right. "Privacy is, in fact, protected by several statutes in several forms, be it Indian Post Office Act, Aadhaar Act, Income Tax Act or others. I am all for statutory protection to privacy. But, giving it a homogenous shape as right to privacy and introducing as a standalone fundamental right would not be proper," he said.
He said it was one thing for the SC to interpret an existing fundamental right to rule that right to privacy was part of it, but quite another to rule it as a standalone fundamental right.
"The Supreme Court must remember that interpretational route to specify a right is far apart from introducing right to privacy in the Constitution despite the Constitution-makers specifically considering, debating and then rejecting it."
"Parliament alone can consider, debate and elevate a common law right as fundamental right in the Constitution, not the Supreme Court," he said. When the Bench said India had an obligation to respect right to privacy as it had signed the UN Declaration on Human rights, Sundaram said India's obligation to respect international treaty mandates was under Article 61 of Directive Principles of the Constitution, which was not an enforceable right.
Appearing on behalf of the Unique Identification Authority of India (UIDAI), the nodal agency for implementation of Aadhaar, Mehta said his position was like the seventh husband of Elizabeth Taylor — his turn to speak had come after several others . He said on being asked how he felt, Taylor’s husband had replied that he knew how to do it, but didn’t know how to make it interesting.
At this point, Justice R F Nariman, one of the judges on the bench, asked, “What happens to the eighth and ninth?” — the judge was referring to those who were to still address the bench. All present in the court room burst into laughter.
During the course of his arguments, Mehta pointed out that many countries had protected privacy via statutes without making it a fundamental right. Joining issue, Justice Nariman said, “We are told that our neighbour, Islamic Republic of Pakistan, recognises privacy as a fundamental right.”
Mehta was quick on the draw. He said he had heard a story though he could not vouch for its authenticity. A minister from a country with no access to the sea, he said, was visiting Pakistan and found himself at the immigration counter. The official at the counter, on realising that the minister’s portfolio was related to the sea, wondered how that could be when the country did not have access to the sea. The minister replied, “So what, even you have a minister for law and justice.”
At another point, Mehta tried to explain that privacy was perceived differently in different countries. In the West, he said, couples express love publicly but that was not the case in India. Justice D Y Chandrachud quipped “it may be because we are more private”. Justice Nariman echoed: “Brother judge was saying may be we are more private”. At this, Mehta remarked that “there are also some things which we have no problem doing in public, but for which the West needs a washroom”.
The additional solicitor general Tushar Mehta said the petitioners' apprehension that personal data collected for Aadhaar would be used by the government to track activities of citizens is unfounded.
"Aadhaar Act is an exemplary piece of legislation that protects personal data zealously and punishes data leakage. The personal data protection regime is so stringent that even if the government attempts to know where Aadhaar card has been used, it would be able to get only general data which would not pin point the location of the citizen. If a person opens bank account, the government would come to know which bank the citizen has opened the account but not the branch location," Mehta said.
