NEW DELHI -- The Centre on Wednesday told the Supreme Court that the right to privacy was a fundamental right but not all its facets can be elevated to the status of fundamental rights.
Attorney General K.K. Venugopal told a nine-judge constitution bench headed by Chief Justice J.S. Khehar "There is a fundamental right to privacy, but it is a wholly qualified right since the right to privacy consists of various aspects and is a sub-species of the right to liberty, every aspect of it will not qualify as a fundamental right."
When the Attorney General insisted that the right to privacy as a fundamental right could not be without restrictions, Chief Justice Khehar said, "This is an undefined right, restrictions are going to be there, when these restrictions are there on defined fundamental rights."
The daylong hearing saw Attorney General Venugopal taking contrary positions on the status of right to privacy - and at one stage telling the bench that a "vague and amorphous right can't be held to be a fundamental right".
"Each one of them (the petitioners) have said that it (right to privacy) was not an absolute right and it can be examined from case to case," Chief Justice told the AG, recalling the arguments advanced by different counsels since the beginning of the hearing, including by senior counsel Kapil Sibal earlier in the day.
Besides Chief Justice Khehar, other judges on the bench are Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.
Telling the bench that the right to privacy was not an absolute right, senior counsel Sibal - appearing for West Bengal, Karnataka, Punjab and Puducherry - said that "right to privacy is not absolute, but the infringement of privacy by the State too is limited".
Describing the right to privacy as "an inalienable natural right", Sibal said, "All I want is that there is a right to privacy which is protected by the Constitution and the rest can be decided later."
Referring to different countries where right to privacy was not there in the Constitution, Sibal told the bench that Pakistan has a right to privacy which is a joke. He urged the court "So if you give us a right, it should not become a joke."
The bench was not impressed when Venugopal described the right to privacy as an "elitist" argument which can't be at the expense of social welfare schemes for giving food, shelter and clothing to 270 million people living below the poverty line.
Not accepting the argument that right to privacy was elitist, both Justice Nariman and Justice Chandrachud emphasised that the right to privacy was as much sacrosanct to the poor as it was to the elite. Justice Chandrachud referred to the forced sterilisation of the poor in 1935 in Europe and during the 1975 Emergency in India.
He termed the compulsory sterilisation of 1935 as the "worst social experiment on poor in the world".
Justice Chandrachud said the State can undertake the direct transfer of cash, but the fundamental rights of the people can't be taken away. He said that personal data collected by the State could be used for legitimate purposes only.
"Your argument that the right to privacy applies to the elite alone is wrong, it applies to the poor people as well," the bench told the Attorney General as he emphasised that right to privacy was an elitist chorus.
"Please don't forget the little man's right to privacy and don't make it Aadhaar-centric. Right to privacy is a much wider right," Justice Nariman told the Attorney General as he said that even the World Bank has said that other developing countries should replicate the Aadhaar scheme.
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.
The matter is being heard by the constitution bench in the wake of challenge to the Aadhaar scheme on the grounds of its being violative of the right to privacy.
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.