Government Almost Concedes Right To Privacy Is Fundamental, But Adds Some Facets of Privacy Cannot Qualify as FR

In a dramatic development, the Attorney General, K.K.Venugopal, conceded before the nine-Judge bench of the Supreme Court hearing the question whether right to privacy is fundamental, that some aspects of privacy may require an elevated protection of Fundamental Right.

This made the bench wonder what was the need to hear this reference, if the Government has conceded this issue, on which there seemed to be differences between the petitioners and the respondents.

Justice S.A.Bobde then explained that the bench is concerned only with the question whether privacy can even in one case be claimed as a Fundamental Right.   The Chief Justice of India, Justice J.S. Khehar too endorsed Justice Bobde on the limited scope of the present reference.

The CJI Justice Khehar was seen repeatedly telling the AG  that the bench’s focused on just one issue, and all other ancillary issues would be dealt with by the smaller bench of five Judges.

The AG contended that the Supreme Court had justified scrutiny of candidates’ assets and liabilities, although seemingly a violation of right to privacy, on the ground of compelling public interest.   The AG’s contention was that privacy claims, even if recognized as Fundamental Rights, must yield to compelling state interests.

At this point, the CJI hinted that the AG might have already conceded the case in favour of the petitioners, as there is no longer any lis.   But the AG explained that it was his alternative submission, without prejudice to his earlier submission that privacy is not a fundamental right.

The bench then told the AG that all fundamental rights are qualified, and not absolute.  Therefore, the AG’s submission that right to privacy is a qualified fundamental right does not make sense, the bench reasoned.

The AG then referred to the huge poverty in India, and talked about how poor families sold a daughter to support the rest of the family in tribal districts like Kalahandi in Odisha.  Therefore, it is not fair and just to talk about right to privacy to such poor people, he argued.

The discussion then turned to the atrocities during the Emergency, including forced sterilization, and whether they could be justified as invasions of privacy in a  poor and overpopulated country.   The AG then referred to the dismissal of the then Tamil Nadu Chief Minister,  Karunanidhi during the Emergency, and how he, as his counsel, defended him.

Petitioner’s counsel, Gopal Subramanium reminded the bench that the AG during the Emergency, Niren De, had to submit to Justice H.R.Khanna during the hearing of the ADM Jabalpur case, that Indian citizens did not have the right to live, if such right was deprived by the authority of law under Article 21 of the Constitution.   Niren De later admitted that he did not believe in what he said, but that was the atmosphere those days, in which even the AG did not feel secure, Subramanium added.

Justice Rohinton Fali Nariman said citing poverty, fundamental right to property was sought to be curtailed, and finally deleted.  He observed that the right to privacy is relevant even to the poor people.

When the AG asked for liberty to argue before smaller bench that there is no Fundamental Rights claim in the  Aadhaar case, the CJI said if he had made similar submission before the five-Judge bench, the present 9-Judge bench need not have been set up.  The AG insisted that the nine-Judge Bench must clarify that even if there is a fundamental right to privacy, it is a qualified one.

At this point, both the ASG, Tushar Mehta and senior counsel, C.A.Sundaram, appearing for Maharashtra, submitted that privacy is not a fundamental right.  Both have not begun their submissions.

Hearing will continue tomorrow.