As lawyers challenging the Aadhaar scheme put up a strong defence of the right to privacy, a judge of the nine-judge constitution bench raised several questions, observing that it was an amorphous right and not absolute.
Justice D.Y. Chandrachud, who is part of the bench headed by Chief Justice J.S. Khehar, also felt that everything that falls under liberty need not necessarily fall under privacy, which is a very small part of liberty.
The lawyers for the petitioners challenging the Aadhaar scheme pointed out that Finance Minister Arun Jaitley had in the Rajya Sabha in March last year described privacy as a fundamental right.
Opening the arguments, senior counsel Gopal Subramanium told the constitution bench, that “Privacy is a part of personhood and is therefore a natural right. This is why natural right is not conferred but only recognised by the Constitution.”
He said that privacy as a right need not be carved out, it is there embedded in the right to liberty and dignity.
Subramanium, who led the arguments on behalf of the petitioners, said: “The right to privacy is recognised as a fundamental right under Article 21 of the Constitution. The concept of privacy is embedded in liberty as well as honour of a person.”
Besides Justice Khehar, other judges on the bench are Justice J. Chelameswar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul and Justice S. Abdul Nazeer.
The nine-judge bench is examining the nature of privacy as a right and also the correctness of two judgments of 1954 and in 1962 which had held that right to privacy was not a fundamental right.
Petitioners include former Karnataka High Court judge Justice K.S. Puttaswamy, first Chairperson of the National Commission for Protection of Child Rights and Magsaysay award recipient Shanta Sinha, feminist researcher Kalyani Sen Menon and others who have challenged the validity of the Aadhaar scheme on grounds of it being violative of the right to privacy.
The first day of the hearing saw the bench asking the lawyers appearing for the petitioners as to what was privacy, its contours, and limitations.
“It is all well and good to argue about privacy in abstract but what are (its) contours and limitations? What is this right to privacy? What does it entail and in what aspects is it applicable and what are its limitations?” the court asked the senior counsel at the fag end of the hearing on Wednesday, which will continue on Thursday.
The bench asked the counsel for the petitioners to address it on the question that “If privacy is a fundamental right what are the contours of challenging it. On what grounds can it be challenged and what would be its ambit”.
Telling the petitioner lawyers that even if privacy was read into Article 21 of the Constitution – guaranteeing right to life and liberty – it would form a very small part of it.
“Everything that falls under liberty need not necessarily fall under privacy. Privacy is a very small part of liberty,” said Justice Chandrachud describing right to privacy as an amorphous right which is not absolute.
Citizens don’t surrender their privacy when they put themselves in public dominion as part of technology in digital age, Justice Chandrachud said, pointing out that there was no social media in 1954 and 1962 when the top court had said that right to privacy was not a fundamental right.
Justice Chandrachud said that “My right to cohabit with my wife or sexual orientation is a right to privacy, but your right to decide to which school your child will go is a matter of choice.”
“I will not say what privacy means … it is more elastic,” Subramanium told the bench, addressing the poser from it. He said that it has to be catalogued which will not be exhaustive and depend on case to case.
He said privacy is not just your bedroom or what you do within four walls, but is about your liberty and dignity to be your own self.
Subramanium said that “The right to privacy is recognised as a fundamental right under Article 21 of the Constitution. The concept of privacy is embedded in liberty as well as honour of a person.”
Taking forward the argument that privacy is a fundamental right, senior counsel Shyam Divan told the bench that “privacy includes bodily integrity that is your own. Your body belongs to the State only in totalitarian regimes”.
Referring to a debate in Parliament on the Aadhaar Bill in March 2016, Divan said that even Union Finance Minister Arun Jaitley during a debate on the Aadhaar Bill in the Rajya Sabha had asserted that privacy was a fundamental right embedded in right to liberty under Article 21 of the Constitution.
Moving the Aadhaar Bill in the Rajya Sabha on March 16, 2016, Finance Minister Jaitley had told the Upper House that: “The present bill (Aadhaar) pre-supposes and is based on a premise that it is too late in the day to contend that privacy is not a fundamental right. So I do accept that probably privacy is a fundamental right.”
Jaitley had told the Rajya Sabha that “It is contended and now it is accepted that privacy is a part of personal liberty. So when Article 21 says, ‘No person shall be deprived of his right of life and liberty without procedure established by law’ then let us assume that privacy is a part of liberty and no person shall be deprived of his privacy without procedure established by law.”
However, the Finance Minister had also said, “The underlying point is that privacy is not an absolute right … that it can be restricted by procedure established by law, now that procedure established by law, …, has to be fair, just and reasonable.”
Having quoted the Union Finance Minister in support of his contention that privacy was a fundamental right, Divan said that in the past 40 years since the mid-1970s different benches of the top court have consistently held that privacy was a fundamental right.
He urged the bench to reaffirm this right.
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