The Supreme Court on Wednesday observed that privacy is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens and said that ‘right to privacy’ was in fact too “amorphous” a term. The observation was made by a nine-judge Constitution bench of the apex court during a hearing to determine whether the right to privacy is a fundamental right under the Constitution.
Earlier, senior lawyers Gopal Subramanium, Soli Sorabjee and Shyam Divan, presented their arguments before the bench headed by Chief Justice J S Khehar. The bench also comprises of 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.
It is set to be a landmark verdict that will define the width of privacy citizens can enjoy as well as right of the state to restrict it. At present, neither the Constitution nor any law recognises privacy as a fundamental right.
During the hearing Justices DY Chandrachud and Rohinton Nariman posed some pressing questions to the counsel representing the petitioners.
“What would be the scope of the right? Would it include marriage – probably yes; procreation – probably yes; sexual orientation – probably yes. The moment we say there is Right to Privacy, the judgment in Naz Foundation becomes vulnerable,“ Justice Chandrachud said.
The Naz Foundation case refers to Supreme Court judgement in which it overturned a Delhi High Court verdict that had set aside Section 377 of the IPC, a law framed in 1860 that criminalises consensual sex among adult homosexual men.
Justice Nariman asked the petitioners what would be the parameters on which violation of Right to Privacy should be tested. He sought more assistance from the petitioners’ counsel on the “parameters of challenge” against Right to Privacy.
Hearing in the case will continue tomorrow.
A five-judge Constitution bench headed by the CJI, which was to deal with pleas challenging the validity of the Aadhaar scheme and the right to privacy attached to it, was faced with the two past verdicts, delivered in 1950 and 1962 by larger benches, holding that the privacy right was not a fundamental right.
The apex court said the nine-judge bench would deal with the limited issue of right to privacy and the correctness of the two judgements. The matter challenging the Aadhaar scheme would be then referred back to a smaller bench, it said.
"During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution," the bench, also comprising Justices J Chelameswar, S A Bobde, D Y Chandrachud and S Abdul Nazeer, said.
"The determination of this question will essentially entail whether the decision recorded by this court in M P Sharma and Ors vs. Satish Chandra, District Magistrate, Delhi and Ors. (of 1950) by an eight-judge Constitution bench, and also, in Kharak Singh vs. the State of UP and Ors. (of 1962) by a six-judge Constitution bench, that there is no such fundamental right, is the correct expression of the constitutional position," it said in its order.
The court asked Attorney General K K Venugopal, representing the Centre, and other senior advocates, including Arvind Datar, Shyam Divan, Gopal Subramanium and Anand Grover, who appeared for petitioners opposed to the Aadhaar scheme, to submit their written briefs in the meantime.
At the outset, Venugopal reiterated the arguments of his predecessor Mukul Rohatgi that there have been inconsistent views so far as judicial pronouncements on right to privacy was concerned.
He said the apex court in M P Sharma and Kharak Singh cases have held that right to privacy was not a fundamental right and later, the smaller benches have said that it was a fundamental right.
Venugopal also said that the right to privacy is not a fundamental right and rather it is common law right which is not recognised by the Constitution.
One of the counsel for petitioners termed as "regressive" the stand of the Centre that the right to privacy was common law right and not a part of fundamental right under the Constitution.
The apex court, initially, referred to the 1978 judgement in the Maneka Gandhi case and said that there was no need to revisit the judgements in Kharak Singh and M P Sharma cases on right to privacy.
A three-judge bench had in 2015 referred to a larger bench a batch of pleas, including the one filed by Justice (retd) K S Puttaswamy, challenging the validity of the Aadhaar scheme and the aspect of right to privacy attached to it.
The apex court had agreed to set up a bench on July 12 to deal with the Aadhaar-related matters after the attorney general and senior advocate Shyam Divan, appearing for petitioners, had jointly mentioned the matter.
The petitioners had claimed that collection and sharing of biometric information, as required under the scheme, was a breach of the "fundamental" right to privacy.
Allowing the Centre's plea, the court had framed various questions, including as to whether right to privacy was a fundamental right, to be decided by a Constitution bench.
"If yes, then what would be contours of right to privacy," the bench had said while referring the matter to the then CJI for setting up a larger bench.
At an earlier hearing, then AG Rohatgi, while backing the Aadhaar card scheme, had contended that right to privacy was not a fundamental right.
"No judgment explicitly cites right to privacy as a fundamental right. It is not there under the letters of Article 21 either. If this court feels that there must be clarity on this subject, only a Constitution bench can decide," Rohatgi had said.
He had cited the two judgements, pronounced by six and eight-judge benches, which had held that right to privacy was not a fundamental right.
Subsequently, smaller benches had held a contrary view and, hence the matter needed to be decided by a larger bench, he had said.
"Whether right to privacy is a fundamental right guaranteed under Part III of the Constitution of India, in the light of express ratio to the contrary by an eight-judge bench in M P Sharma case and also by a six-judge bench of this court in Kharak Singh's case has to be decided," Rohtagi had said.
(With PTI inputs)
