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26
July 2017
 |
SC (The Total Investment & Insurance
Solutions)
The Union
Government on Wednesday told the Supreme Court that the right to privacy was a
fundamental right but not all its facets will be covered under it.
Attorney
General KK Venugopal told a nine-judge Constitution Bench headed by Chief
Justice JS Khehar, "There is a fundamental right to privacy, but it is a
wholly 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". The
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In an
important development, several State governments decided to join the issue on
the side of the petitioners and argued that there does exist a fundamental
right to privacy in India.
The
nine-Judge constitutional bench on Wednesday resumed hearings to settle the
question on whether there exists a fundamental right to privacy in India. This
bench, in the words of Justice Rohinton Fali Nariman, "...will decide the
issue once and for all for conceptual clarity for the nation."
Senior
advocate Kapil Sibal began the day's proceedings representing the States of
Karnataka, West Bengal, Punjab, and the Union Territory of Pondicherry. He took
the position that privacy was indeed a fundamental right, but argued that it
was not absolute, and the court would have to strike a balance between rights
and restrictions. His elaboration that the contours of privacy would have to
considered afresh was cut short by Chief Justice Khehar reiterating that the
concern at present was only whether privacy was a fundamental right. Responding
to Justice Jasti Chelameswar's question on the location of a potential
fundamental right to privacy, Mr Sibal suggested Article 21 but also maintained
that it is an inalienable natural right that inheres in all human beings.
The counsel
for the state of Himachal Pradesh, JS Atri, then made a brief submission
supporting privacy as a fundamental right and being part of personal liberty
flowing from the Preamble to the Indian Constitution. The Total Investment & Insurance Solutions
Attorney
General Venugopal's primary prayer was that privacy is not a fundamental right,
that it is too vague to qualify as a fundamental right. He argued that there
can be no independent right called right to privacy, and that privacy is only a
sociological notion, not a legal concept. If privacy were declared a
fundamental right, then it can be a qualified right. He asked judges to state
that only some aspects of privacy are fundamental, not all, and it is a limited
fundamental right that can be taken away in legitimate state interest. The Total Investment & Insurance
Solutions
The Attorney
General also said that in developing countries something as amorphous as
privacy could not be a fundamental right, that other fundamental rights such as
food, clothing and shelter override the right to privacy. The Total Investment & Insurance
Solutions
Last week, a
large number of lawyers with an illustrious record argued for privacy as a
fundamental right. This included Soli Sorabjee, Anand Grover, Arvind Datar,
Meenakshi Arora, S Poovayya. Senior advocate Shyam Divan who argued in the
PAN-Aadhaar case that Aadhaar was like an "electronic leash" on the
people also appeared for the petitioners.
The
government's contention -- riding on the back of the Kharak Singh judgement --
which had raised the question on privacy as a fundamental right in the first
place did not seem to convince the bench. There have been 40 judgements since
then reiterating the right to privacy.
In fact, the
government has itself, in its earlier submissions in the Aadhaar matter, not
contested privacy as a fundamental right. In fact, Finance Minister Arun
Jaitley has said so on the floor of the House. Further, in the WhatsApp case,
the government has this week argued for the right to privacy!
The
government will continue its submissions on Thursday.The Total Investment & Insurance Solutions
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