Privacy is a Fundamental Right, govt concedes in SC

Privacy is a fundamental right but a "wholly qualified" one, the Centre conceded on Wednesday after hours of dithering on the subject during the ongoing hearing that's been triggered by petitions challenging the mandatory use of Aadhaar as an infringement of privacy.

During the day-long hearing, the government walked a fine line and fell short of taking a clear stand before a rare nine-judge Constitution bench formed to determine whether individual privacy is a fundamental right protected by the Constitution.

Attorney General (AG) KK Venugopal, who appeared for the Centre, said that the right to life (under Article 21) superseded one's right to privacy. "Aadhaar is beneficial to the poor. In the name of fundamental rights, one cannot deprive a large section of the society and their right to life," the top law officer said. This comes as a U-turn as the Centre has repeatedly submitted in the past that privacy was not a fundamental right.

Critics say the Aadhaar identity card links enough data to create a comprehensive profile of citizens and the data — containing fingerprints, iris scans, and demographic information — can be misused.

Earlier in the day, senior advocate Kapil Sibal, representing three non-BJP states, Punjab, West Bengal and Karnataka, and the Union Territory of Puducherry, initiated the day's proceedings and backed the pro-privacy parties.

The right to privacy was not an absolute right, but a fundamental one and the court needed to strike a balance, Sibal submitted before the bench comprising Chief Justice of India JS Khehar, besides Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.

Aadhaar was started seven years ago to streamline payment of benefits and cut down on massive wastage and fraud. About 95.10 per cent of India's population has registered for the 12-digit identification number. The Centre has extended its Aadhaar enrolment deadline from June 30 to September 30.

Through the day, the bench kept prodding Venugopal to clarify the government's position. At one point, the CJI made it clear that the matter would be instantly resolved if the Centre admitted that privacy was fundamental. "Give us your final reasoning for the conceptual clarity of the nation," Justice Nariman said.

"There is a fundamental right to privacy but it is a wholly qualified right. Since it consists of diverse aspects and sub-species like (right to) liberty, every aspect will not qualify (as fundamental right)," Venugopal submitted.

"You are saying that right to privacy is a fundamental right. But not every aspect of it (privacy) is a fundamental right. It depends on a case-to-case basis," CJI Khehar said, summing up the Centre's somewhat confusing statements.

Venugopal explained that for the government, privacy was not a homogenous concept. This aspect consists of diverse rights and a multitude of them cannot be clubbed without examining them. Privacy needs to be treated with a "more nuanced calibrated approach as opposed to a broad characterisation", he said.

"The present aspect (Aadhaar) will not fall under the fundamental right category," Venugopal said. He emphatically submitted that citizens cannot protest against Aadhaar by claiming a violation of their right to privacy. Privacy was not a fundamental and absolute right in this instance. The state can subject privacy to reasonable restrictions to preserve the right to life of the masses, he said. Venugopal said an elite few cannot claim that their bodily integrity would be violated by a scheme which aimed to target ans deliver subsidiaries and benefits to millions of poor households across the country.

To this, Justice Nariman said: "Don't forget the little man's right to privacy, everything about right to privacy is not connected to the Aadhaar issue".

"You are wrong to say that privacy is an elitist construct. Privacy also affects the masses. What about the right to privacy of the poor? For example, cervical cancer is very common in women in India. Does that mean you can make clinical trials on women compulsory? Or, for that matter, can you enforce compulsory sterilization? Right to privacy of these women will be the only right standing in the way of the State subjecting them to such a 'health trial'," Justice Chandrachud interjected.

"Why are all social experiments always done on the poor?" he asked. The hearing will continue on Thursday with UIDAI that issues Aadhaar cards and Additional Solicitor General Tushar Mehta, who is representing a few states presenting their case.