All Aspects of Privacy Cannot Qualify as a Fundamental Right, Centre Tells SC

A nine-judge constitution bench is hearing arguments in the case on whether right to privacy is a fundamental right. Credit: PTI

A nine-judge constitution bench is hearing arguments in the case on whether right to privacy is a fundamental right. Credit: PTI

New Delhi: The Modi government told the Supreme Court that right to privacy may be considered a fundamental right, however, all aspects of privacy could not be put under the fundamental rights category as arguments in the ‘right to privacy’ case resumed on Wednesday (July 26).

The question of whether Indians have a fundamental right to privacy needs to be settled in order for the Supreme Court to finish hearing a set of petitions that challenge the government’s Aadhaar project – the biometric authentication system which critics say violates privacy.

According to a Times of India report, attorney general K.K. Venugopal told the bench that, “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.”

A wholly qualified right is one where government is allowed to intervene in special circumstances, and only when necessary, as opposed to an absolute right – which cannot be limited in any way. According to an Indian Express report, an absolute right can not be reduced or amended.

Venugopal, who is arguing for the government, stated that privacy as a fundamental right was “deliberately omitted” from Article 21, under which rights are not absolute. “That is why we have the death penalty for gross crimes and incarceration for crimes.”

He further argued that right to life is a “pre-existing right,” which “transcends” right to privacy.

Also read: Explained: Government’s Double Standards on Privacy Before the Supreme Court

Earlier in the day, four non-BJP ruled states, including Karnataka and West Bengal, had moved the apex court seeking to intervene in the ongoing hearing, PTI reported.

Two Congress-led states – Punjab and Puducherry – also took a stand opposite to the Centre which had said that the right to privacy is a common law right and not a fundamental right.

Senior advocate Kapil Sibal, who is representing the four states, argued that, “In this era of technology, right to privacy cannot be absolute. The court has to strike a balance and there should be a method to protect communication between state and individuals and non-state parties and individuals.”

Sibal, who argued for a data protection law in the country, further said, “When state accesses data, it should be sanctioned by law and it should be for a legitimate aim.”

A nine-judge constitution bench headed by Chief Justice of India Jagdish Singh Khehar began hearing in the case on whether right to privacy is a fundamental right on July 19. Senior counsel Gopal Subramanium had then told the apex 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 that it violates the right to privacy.

(With PTI inputs)


    Every fundamental right is not absolute but every right has few exceptions. By linking aadhar, many exceptions are becoming rules thereby shrinking fundamental rights to very narrow spaces. Generally right to privacy is used with very few restrictions. But the restrictions are being imposed in as many sectors as possible and reducing privacy right to very narrow space