The observation came during the daylong hearing as the AG sought to put across the point that only upper middle class and upper class were concerned about the right to privacy in a country where 270 million people required assistance of the State for their basic needs such as food, shelter and clothes.
Updated:July 26, 2017, 8:33 PM IST
New Delhi: The Supreme Court on Wednesday told the Central government that right to privacy was neither “all about Aadhaar” nor was this an “elitist concept” but that it also concerned the “little poor man” of this country.
“Not everything is Aadhaar-centric… think about the little poor man too. Don’t forget his right to privacy,” a nine-judge bench led by Chief Justice of India J S Khehar told Attorney General K K Venugopal.
Venugopal added that “something as amorphous as privacy” cannot be assigned the status of a fundamental right.
The observation came during the daylong hearing as the AG sought to put across the point that only upper middle class and upper class were concerned about the right to privacy in a country where 270 million people required assistance of the State for their basic needs such as food, shelter and clothes.
Venugopal was categorical that privacy at best could be premised upon right to personal liberty but it has to give way to right to life of 270 million people who can access basic necessities through Aadhaar.
“The right to life transcends the right to privacy...nobody can be heard to say my right to personal liberty, which may be claimed as repository of right to privacy is absolute. Even the right to life is not absolute. State can take it away through procedure established by law. That's why you have death sentence which take away your right to life, and you have incarceration, which curtails your liberty,” he contended.
“Privacy is a heterogeneous concept. It will have many shades, many instances and manifestations in the form of sub-species. Privacy is in fact an umbrella term for several claims. How will you propound a generalised right to privacy? It can’t be absolute and has to be qualified. This will have to be decided on a case by case basis. Some claims may qualify as a violation of right to privacy, some may not. Every single claim of privacy, irrespective of context, extent and manifestation, cannot automatically and ipso facto be elevated to being a fundamental right,” maintained Venugopal.
The AG then went on to state that privacy was in fact more like a sociological notion, derived of something like a pursuit of happiness, but it lacked the jural concept.
“Privacy is a concept meant more for developed countries but not for a country like India...The upper middle class is very happy. They look after themselves. What about poverty?” he said.
But Justices Rohinton F Nariman and D Y Chandrachud retorted that privacy cannot be dismissed as an elitist concept.
“Privacy isn’t an elitist concept…this will affect large masses. State can't get a blanket sanction to do whatever it wants Can State say we will compel slum dwellers to undergo sterlisation since it may control population? Can you force poor women suffering from cervical cancer to take experimental drugs?” asked Justice Chandrachud.
As Venugopal pressed that something as socially beneficial as Aadhaar cannot be debunked on a group accusing it of violating their right to privacy, Justice Chandrachud referred to certain instances from the 1975 Emergency to buttress that privacy affects the poor equally and the might of the State may not always be the perfect example.
“You may argue that the State’s interest is legitimate but you cannot deny there is no right…forces sterilisations were done during the emergency. Eugenic sterilization was followed. Do we want to justify them all?” he questioned the AG. Justice Nariman also intervened, saying the government’s arguments was a classic case of “throwing the baby with the bath water.”
At this, CJI Khahar asked Venugopal to describe what according to him the worth of right to privacy was. Venugopal responded that privacy may have certain aspect of a fundamental right but it cannot be classed as such. The CJI replied that that if the government was conceding that privacy was a fundamental right, the case did not require to be heard any further and proceedings could come to an end by recording the AG’s statement.
Venugopal, however, clarified that he never meant to say that privacy, as a term, could be declared to be a fundamental right. “There is a fundamental right to privacy but it is wholly qualified right. Since right to privacy consists of diverse aspects and it is a sub-specie of liberty, every aspect of the sub-species will not qualify as a fundamental right,” he clarified.
The AG added the government was willing to go back to a 3-judge or a 5-judge bench to show how Aadhaar did not come under the ambit of violation of any of the fundamental rights. “It will be preposterous to say that Aadhaar will turn India into a totalitarian State,” said Venugopal.
As the AG made conditional statements, Justice Nariman said that the nine-judge bench would rather appreciate all the arguments and come up with a judgment for “conceptual clarity of the nation” on the issue.
The arguments over the right to privacy, which has arisen in the wake of controversies surrounding alleged breach under the Aadhaar scheme, will resume tomorrow.
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First Published: July 26, 2017, 7:50 PM IST
