Did government just concede privacy is a fundamental right?
The Centre on Wednesday (July 26) made a U-turn before a nine-judge bench of the Supreme Court, which is adjudicating whether privacy is a fundamental right. The Centre represented by attorney general KK Venugopal conceded that privacy is a "fundamental right with limitations".
The stand is in stark contrast to what the Centre had earlier told the Supreme Court on various occasions arguing that privacy is not a fundamental right.
This volte-face by the Centre is appalling for many reasons. For the past two years, it has been making headlines with statements pertaining to the right to privacy.
When Aadhaar was challenged for being violative of the right to privacy, the Centre made a bold statement about two years ago, that privacy is not a fundamental right. The matter came up before a five-judge bench where the attorney general again asserted that privacy is a common law right, but not a fundamental right.
Finally, the Supreme Court started the marathon hearing with a quorum of nine judges adjudicating whether privacy has the status of a fundamental constitutional right. And when finally, it was the Centre's turn to defend its stance, it was evident from the start how the stand began to soften.
Attorney general Venugopal's arguments had two limbs. First that "not all aspects of privacy are protected as fundamental rights". It was intrinsic in this argument that certain aspects were part of fundamental rights.
Venugopal was hesitant to accept this but the bench grew increasingly anxious. Justice Sanjay Kishan Kaul asked the Centre point blank whether it's conceding that privacy or at least parts of it are protected as fundamental rights.
The back and forth continued for about half an hour. Finally, the CJI told the attorney general that if the stand of the Centre is that privacy or at least some aspects of privacy are part of fundamental rights, then the case can be closed right away.
CJI JS Khehar told the attorney general, "If you acknowledge that certain species of privacy are fundamental rights, then we will close the matter right away. Even defined fundamental rights have limitations, privacy is undefined."
Towards the end of the hearing, the attorney general made a categoric statement, "Right to privacy is a fundamental right but a qualified one. Yes, there is a fundamental right to privacy."
The bench, however, clarified that in the future it's going to lay down the scope and contours of privacy.
Privacy only for the rich?
The "social necessity" argument of the Centre is more problematic than its U-turn on privacy. The second limb of the argument of the Centre has been that privacy has a very limited claim in a country like India where people don't have access to basic needs like food, water, clothes and employment.
The attorney general said, "Right to privacy has no claim in a country like India where people are deprived wholesale of basic things like food and shelter. Right to privacy of some individuals cannot be implemented against right to food and life of other people. Judgments from countries such as the US on privacy cannot be applied in India, India is a developing country with different facets."
The above argument of the government is problematic for various reasons. To begin with, it's a political argument not a legal one. The government represents the rich and the poor, and of course, greater public good must take precedence in a conflicting situation. But there is no precedent in history to support the broad argument that by impinging on privacy, social welfare schemes would be a success.
In fact, the bench also reminded the Centre how privacy rights were flouted during Emergency to carry out mass sterilisations. Justice DY Chandrachud reminded how experiments are done on the poor to their detriment.
Further, the government is taking a morally superior position. It wants us to assume that when the state usurps fundamental rights, it does that for morally superior goals.
The argument reeks of "rulers" telling the "ruled" that they know better!
Is the government harping on the narrative of the rich versus the poor for its political goals?
Let's take this argument further. Will we now allow the arguments of "social necessity" put forth by the power holders to impinge upon constitutional rights? If so, what will be the limitations of such actions by the Centre? And what is the public good?
The Centre's argument treads on a dangerous path which splits into two implacably opposing sides - anti-democracy and freedom.