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Right to Privacy Multifaceted, So Can’t Be Fundamental, Centre Tells SC

The Maharashtra government’s lawyer added that privacy wasn’t an exact concept, so couldn’t be treated as a fundamental right yet.

Supreme Court is pictured through a gate in New Delhi, India May 26, 2016. Credit: Reuters/Anindito Mukherjee

Supreme Court is pictured through a gate in New Delhi, India May 26, 2016. Credit: Reuters/Anindito Mukherjee

New Delhi: The Centre today told the Supreme Court since that privacy was multifaceted, it could not be treated as a fundamental right.

Attorney general K.K. Venugopal resumed his arguments before a nine-judge bench headed by Chief Justice J.S. Khehar on Thursday. “There is no fundamental right to privacy and even if it is assumed as a fundamental right, it is multifaceted. Every facet can’t be ipso facto considered a fundamental right,” Venugopal told the bench, which also comprised Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

He said “informational privacy” could not be a right to privacy and it could not ever be a fundamental right.

Senior advocate Aryama Sundaram, appearing for Maharashtra, said that privacy is not a fundamental right. Privacy is “just a concept,” he said, and without knowing exactly what it is, it cannot be deemed fundamental. Unlike other concepts like freedom of expression, there is no exactitude.

The attorney general had yesterday told the bench the right to privacy could be a fundamental right, but could not be “absolute”.

The contentious issue of whether the right is a fundamental one was referred to a larger bench in 2015 after the Centre underlined two judgements delivered in 1950 and 1962 by the apex court that had held it was not a fundamental right.

The apex court had earlier observed the state could seek information such as details on the number of children a woman had, but at the same time could not force her to answer a question on how many abortions she’d had.

The court had asked the attorney general the difference between the right to privacy being considered a common law right and a fundamental right. He had replied that the common law right could be enforced by filing a civil lawsuit and if it was considered a fundamental right, the court could enforce it like any other writ.

Senior advocate Kapil Sibal, while representing four non-BJP ruled states – Karnataka, West Bengal, Punjab and Puducherry – had yesterday argued that these states supported the contention that the right to privacy be held as fundamental in the age of technological advancements.

Giving the example of GPS, Sibal had said the movement of person could be tracked and misused by the state as well as by non-state actors.

The apex court had on July 18 set up the constitution bench after the matter was referred to a larger bench by a five-judge bench.

The petitions had claimed the collection and sharing of biometric information, as required under the Aadhaar scheme, was a breach of the “fundamental” right to privacy.

The Centre had on July 19 submitted in the apex court that the right to privacy could not fall in the bracket of fundamental rights as there were binding decisions of larger benches that it was a common law right evolved through judicial pronouncements.

Activists question Centre’s claims

The Right to Food Campaign on Thursday issued a statement against the Centre’s claim in the Supreme Court on Wednesday that even if Aadhaar infringed on privacy, it did so to preserve other rights like the right to life and properly implement welfare schemes. The statement says government data proves that there are lakhs of low-income households who are unable to access welfare benefits like pensions because of the Aadhaar linkage.

According to data put out by state food departments, in Rajasthan 33 lakh families are unable to access their Public Distribution System (PDS) ration entitlement each month due to the linkage of the PDS with Aadhaar. Similarly in Jharkhand, 2.5 lakh persons are deprived of their grain entitlements on a monthly basis. Even in areas (e.g., Ranchi District) where the integration has been in place for over a year, the rate of non-transacting households is high. In June 2017, in Ranchi District, on 67% were able to buy their grain through Aadhaar-Based Biometric Authentication.

There are ongoing cases in the Delhi HC, Karnataka HC and the Rajasthan HC challenging the linking of Aadhaar to ration cards and making it mandatory for PDS. The Rajasthan and Karnataka HCs have given an interim stay on the linking of Aadhaar and ration card. In the case in Delhi HC affidavits showing large scale exclusion of people due to Aadhaar have been submitted and the HC has appointed a local commissioner to look into the issue of exclusion.

The damage Aadhaar is causing in the implementation of welfare schemes, the Right to Food Campaign has said, is likely only to increase as more and more schemes come under its ambit without the issues being resolved.

(With PTI inputs)