Right to privacy is not absolute, observes Supreme Court

New Delhi: “Right to privacy” is not absolute and it can’t stop the legislature from imposing reasonable restrictions, the Supreme Court on Wednesday observed orally while taking up a batch of petitions challenging the constitutional validity of the Aadhaar scheme and claiming privacy as a fundamental right.

A nine-judge Bench, including Chief Justice J.S. Khehar, is revisiting, after 55 years, two earlier judgments which held that “right to privacy” is not a fundamental right.

While senior counsel Arvind P. Datar was making his submission, Justice Chandrachud said “right to privacy” can’t be defined by the court as its contours are amorphous. 

The court asked the counsel, “Can this court define privacy? You can’t make a catalogue of what constitutes privacy. Privacy is so amorphous and includes everything from liberty, dignity, religion and free movement.”

Justice Chandrachud told the counsel that “if we make any attempt to catalogue privacy, it will have disastrous consequences. Privacy is a sub-sect of liberty and not necessarily co-exists with data protection”. The arguments will continue on Friday.

The court said, “Every fundamental right can be subject to reasonable restrictions under Article 19 (2) of the Constitution and the State is entitled to regulate the right,” he said.

Citing examples, Justice Chandrachud said, “Right to make a decision will not come under privacy. If I decide to cohabit with my wife, police can’t barge into my bedroom. That’s my privacy.”

The argument will continue on Friday and the attorney general is likely to put the government’s view across.

Senior counsel Gopal Subramanium argued that privacy is a broader concept and data sharing is only one aspect of it. 

Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming certain sense of privacy, he said. 

The State is under an affirmative obligation to protect the fundamental rights. Liberty is fundamental to democracy and citizens cannot exist without privacy, he said.

Former attorney general Soli Sorabjee also said that privacy is not explicitly laid out in the Constitution. But that does not mean the right does not exist as it has be deduced from the Constitution. 

He argued that the freedom of press has been derived from Article 19, similarly, right to privacy can be derived broadly from Article 21.

When counsel Shyam Divan submitted that a person should have the right to “informational self-determination, Justice Chandrachud asked, “If people have put themselves in the public realm using technology, is that not a surrender of their right to privacy?” 

“In the Internet age, a person should have control on how much he should put forward and not be compelled,” Mr Divan submitted. 

He drew the court’s attention to the fact that Union finance minister Arun Jaitley, during a discussion in Rajya Sabha on Aadhaar Bill in March 2016, had said that right to privacy was a fundamental right but now the same government is denying it.

Attorney general K.K. Venugopal earlier told the court that an eight-judge Bench in 1954 and a six-judge Bench in 1962 had ruled that “right to privacy” was not a fundamental right.

Thereafter, the apex court referred the matter to the nine-judge Constitution Bench which, apart from the CJI, includes Justices Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer