While expressing strong reservations in announcing the right to privacy a fundamental right, the Supreme Court of India on Wednesday said that privacy is not an absolute right that could prevent the state from restricting or legislating it.
The question of right to privacy had arisen during the hearing of petitions that challenged the constitutional validity of the Aadhar Scheme, which requires citizens to reveal their bio-metric data, on the grounds that it affected the privacy of citizens.
The apex court has reevaluated the question of right to privacy 55 years after a six-judge bench in 1962 announced that privacy is not a fundamental right of citizens.
The petition for the right to privacy was heard by a nine-judge bench of the Supreme Court of India comprising Chief Justice of India J S Khehar, Justice DY Chandrachud, SK Kaul, J Chelameswar, SA Bobde, AM Sapre, RF Nariman, S Abdul Nazeer and RK Agarwal. Addressing the petitioners who asserted that right to privacy should be a fundamental right, the nine judge bench of the apex court said,
You all are arguing as if right to privacy should be declared as an absolute right. What should be its width and contour? What should be the reasonable restrictions attached to it? Right to privacy cannot be so absolute and overarching that the state is prohibited from legislating restrictions on it.
While analyzing if the right to privacy could be a fundamental right, the bench could be seen directing an entire series of questions at the lawyers who represented the petitioners. Senior lawyer, Gopal Subramanium, was one of those lawyers. As reported by the Times of India, Subramanium, while addressing the bench of judges, said that the right to privacy was embedded in all forms of liberty which is the core of all the fundamental rights of an individual.
Supporting advocate Subramanium, former attorney general Soli J Sorabjee held that though right to privacy does not have an explicit mention in the Constitution of India, it is an “inalienable right” of every human. Sorabjee further said,
Right to privacy can be deduced from other fundamental rights as was done by the SC while terming freedom of press as part and parcel of right to freedom of speech and expression despite freedom of press not finding mention in the Constitution.
The bench of judges did not seem to be very convinced with the arguments of the counsel of advocates and said,
Every element of liberty is not privacy. Like right to dissent is part of liberty but it is not right to privacy. If we declare right to privacy as a fundamental right, will it permit the government to enact a law prohibiting social media from making personal details of its users public? So, what will be the obligations of a state in such a situation?
The lead in highlighting the concerns of the bench and directing a whole set of questions was mostly taken by Justice Chandrachud, Nariman, Bobde and Chelameswar. Raising its concerns on the matter, the bench further said,
There is an amorphous right called right to privacy. If we can’t define what is right to privacy and what are its limitations, can we just leave it with a declaration that it is a fundamental right? We do not know what proportions social media will attain in the next five years and the issues of privacy it would throw up. We can understand privacy in the context of cohabitation with wife, sexual orientation but can right of privacy be so broad that parents can decide whether or not to send their children to school? Should we attempt giving a broad definition to it?
The Center is yet to put its arguments forward which is expected to take place in the next hearing on Wednesday.