26 July, 2017
All aspects of privacy cannot be put under fundamental rights category, Centre tells SC
Mr. Kapil Sibal appearing on behalf of State of Karnataka, West Bengal and Puducherry submitted before the 9 Judge Bench headed by CJI Khehar that States support the Petitioners on the argument that Right to Privacy is Fundamental Right.
- He submitted before the Apex Court Bench that Technology allows the State to be all pervasive and invasive. Thus it has the capacity to empower and disempower and also aggregate and disaggregate.
- He further stated that the issues that arise in the 20th century were not considered by Supreme Court in 1954 and 1962.
- Mr Kapil Sibal brought to the notice of the Bench that in the MP Sharma caseand Kharak Singh case cannot be used to determine the contours of Privacy in the prevailing circumstances due to the vast multitude of changes in terms of the Technology and the circumstances.
- He further stated that Right to Privacy cannot be a absolute right. Courts has to strike a balance and there should be a method to protect Direct Access of the information by the State, Indirect Access by the State and Access between the Non-State Actors and Non-State Actors Privacy relates to one’s physical being, thoughts and inter-personal relationships.
- Sibal stated that Right to Privacy is inalienable and inherent right because it protects the inner sphere of a individual personal and social. It comprises of Physical Being, Interpersonal thought, private communication, data which one does not want to share.
- Mr Sibal further submitted that When a particular data is shared with a Government Department for a Particular Purpose, when such data is shared and accessed by any other Department it violates the Right to Privacy by violating the Confidentiality,
- He said that Sharing of Data should legislatively protected to allow legitimate use of the Data and the data can be shared for such use.
- He stated that there are certain determinants for State that should be satisfied with respect to Right to Privacy:
- Action sanctioned by Law
- Action Should be Legitimate
- Extent should be proportionate
- Proper Procedure should be laid down
Attorney General KK Venugopal
- Arguing for Centre, AG Venugopal submitted that the framers of Constitution had intentionally omitted mention of privacy as the Fundamental Right under the Constitution and also Supreme Court in Maneka Gandhi case has omitted to incorporate the word Privacy.
- Mr K K Venugopal further stated that there are several aspects to the Right to Life such as the right to food, shelter and employment but everything does not enjoy Status of a Fundamental Right but Privacy cannot reside in Article 21 as a Derivative.
- To this Justice Chandrachud, questioned the Attorney General that is If Right to Clean Environment etc are part of Article 21 then why not Right to Privacy?
- To this Attorney General replied that there is no absolute Right to Life and Privacy and deprivation of Right in certain instances is in-built in Constitution. He further added that while every single claim of privacy, where Right to Privacy is encroached upon cannot be raised to status of Fundamental Right.
- He submitted that the Petitioners want privacy on a whole to be declared as a the Fundamental Right which will have grave consequences, thus Lordship must look into such law.
- AG stated that World Bank has declared that Aadhaar is something that every developing country should follow.
- Justice Chandrachud stated that,” There should be a law which provides use of information given via Aadhaar. Such information safe from unauthorized private use and the Data is used for the purpose for which it is taken”.
- Attorney General further submitted that in a developing country like India putting in place Right to Privacy would amount to depriving people of necessities of life.
- CJI Khehar and Justice questioned Attorney General that,” The question pertains to whether there is any Fundamental Right of Right to Privacy? The Governments reponse should be No because Petitioner says there is. There are facets to every Fundamental Right like Speech etc.
- To Attorney General replied that the Petitioner state that Right to Privacy is all inclusive. It is agreed that there is Right to Privacy but there are certain concerns. Right to Privacy in developing country will attack there Right to Liberty, access to welfare schemes etc. It is thus a Qualified Right.
- AG added that Right to Privacy consists of diverse aspects and is sub-species of Liberty and every aspect of sub-species will not qualify as a Fundamental Right.