Privacy too vague to be a right: Centre to Supreme Court

New Delhi: The Centre on Wednesday asserted in the Supreme Court that the concept of privacy is too vague to qualify as a fundamental right. Attorney general K.K. Venugopal, making this submission before a nine-judge bench, said, “Defining the contours of privacy is not possible. Privacy is as good a notion as pursuit of happiness.”

The nine-judge Constitution bench is examining whether right to privacy is a fundamental right or not in a case that could have implications for Aadhaar.

Two judgments of the apex court, in 1954 and 1962, have held that privacy is not a fundamental right.  

The AG argued that there could be no independent right called right to privacy as privacy is a sociological notion, not a legal concept.

“Every aspect of it does not qualify as a fundamental right, as privacy also includes the subtext of liberty. No need to recognise privacy as an independent right… If privacy were to be declared a fundamental right, then it can be a qualified right,” he said. And since only some aspects of privacy are fundamental, Mr Venugopal submitted that in legitimate state interest this limited fundamental right can be taken away.

Reiterating that in developing countries something as amorphous as privacy could not be a fundamental right that overrides other fundamental rights such as to food, clothing, shelter etc., he submitted that the World Bank has said that identity system should be followed by every developing country.

“We can’t say every encroachment of privacy is to be elevated to fundamental right. The claim to liberty has to subordinate itself to right to life of others,” Mr Venugopal said.

Earlier in the day, senior counsel Kapil Sibal, appearing for four non-BJP ruled states — Karnataka, West Bengal, Punjab and Union Territory of Puducherry — said that in light of technological advancement, the court needs to take a fresh look at right to privacy and its contours in the modern world.

“Privacy cannot be an absolute right, but it is a fundamental right. This court needs to strike a balance,” he said.  

Mr Sibal asked the apex court to address the issue of privacy afresh, and not from the prism of an era where issues confronting contemporary society did not exist.

He said the right to privacy as an inalienable natural right is based on the classic premise of the individual’s wish to be let alone. However, the contours of the right needs to be understood with changing times. Rapid advances in science and technology pose considerable challenges in delineating the exact contours of the right.

Mr Sibal argued that privacy is a right which protects the inner sphere of the individual from interference of state and non-state actors and allows the individual to make autonomous life choices regarding the construction of her identity, not only in seclusion from others but in the personal, familial, and social. With advances in technology, the state in the 21st century is far more powerful than it ever was, and is capable of entering a citizens house without knocking at his/her door. Evolution of technology has facilitated easy intrusion into the life of individuals by state and non-state actors, he said. Arguments will continue on Thursday.