Govt blinks, signals rethink on privacy as a fundamental right

New Delhi: The centre on Wednesday recalibrated its stand on privacy, conceding for the first time that it was a fundamental right under the Constitution—with the caveat that the right could not be extended to “every aspect” of privacy.

Attorney general K.K. Venugopal submitted that privacy was at best a “sub species of liberty and every aspect could not qualify as being fundamental in nature”.

By implication, the government may be able to argue that the present aspect of privacy being invoked in the case against the centre’s twelve-digit biometric project Aadhaar may not be valid.

A nine-judge constitution bench set up to address the limited aspect of whether privacy qualifies as a fundamental right in India took note of the centre’s rethink.

Earlier in the day, the case acquired a partisan hue, when four non-Bharatiya Janata Party states and a Union territory—Karnataka, West Bengal, Punjab, Himachal Pradesh and Puducherry—opposed the centre’s stand on privacy.

Their counsel Kapil Sibal told the court that with the advent of technology, which is pervasive in nature, the state had become powerful enough to be invasive in a citizen’s life.

There is, therefore, an urgent need for a data protection law equipped to deal with privacy breaches, he added.

The centre’s argument over the day was three-fold. First, it argued, right was not absolute in nature; it could be traced to the right to life and would have to be scrutinized under that provision of law.

Its second defence was that the right could not be homogenous in nature and transcend the right to life under Article 21.

“If the right was to be elevated to a fundamental right, its sub-species would also have to be granted the same status which was not permissible under law,” said Venugopal.

He went on to compare it to the right to life and its sub-species of the rights to food, shelter, health, education and employment, adding that all sub-species could not be accorded the status of a fundamental right.

Citing Aadhaar, the centre said privacy could not be elevated to a fundamental right as it would deprive the poor of benefits.

It said the right to privacy needed to be considered vis-a-vis the right to life of millions of people availing benefits under the Aadhaar scheme.

This was opposed by justice D.Y. Chandrachud who cited the atrocity of forced sterilization of the poor during the Emergency period of 1975-77.

Venugopal also sought to address several issues concerning privacy before a five-judge constitution bench, which was denied by the court.

The broad sub-sects of privacy put forth by the petitioners during arguments were: privacy related to body, dissemination of information and exercise of personal choice.

The apex court asked the centre to identify which of the three rights would it deem fundamental.

Over the last two years, the centre has strictly maintained that Indian citizens don’t have a fundamental right to privacy under the Indian Constitution.

“Common law rights can be elevated to the status of fundamental rights provided they meet certain conditions, as in the case of right against self incrimination, right against retroactive application of criminal laws, right against double jeopardy,” according to Alok Prasanna Kumar, a lawyer and visiting fellow at think tank Vidhi Centre for Legal Policy.