#Aadhaar: “Fundamental right to privacy is hard fought jurisprudence”, Gopal Subramanium

#Aadhaar: “Fundamental right to privacy is hard fought jurisprudence”, Gopal Subramanium

Murali Krishnan

Senior Advocates Gopal Subramanium and Shyam Divan are going all out to defend Indians’ “fundamental” right to privacy. Both the Senior lawyers have vociferously argued that the right to privacy is a facet of right to life and personal liberty under Article 21 of the Constitution and the Supreme Court’s judgments to that effect are crystal and binding.

This comes after the controversial argument made by Attorney General Mukul Rohatgi that right to privacy as a fundamental right under Article 21 is not a settled position of law and might be required to be considered by a larger Bench of the Supreme Court.

During the hearing of the case on July 22, AG Rohatgi had submitted that there is a divergence of view with respect to whether right to privacy is a fundamental right under Article 21 or not. He submitted that the 8 judge Bench decision of the Supreme Court in the case of MP Sharma v. Satish Chandra was misinterpreted by subsequent Benches of the Supreme Court to read into Article 21, right to privacy. He, therefore, submitted that the matter should be referred to a larger Bench to settle the position of law in this regard.

The Bench seemed inclined to refer the case to a larger Bench but Senior Advocate Shyam Divan, appearing for the petitioner SG Vombatkere, argued that MP Sharma’s case has no applicability in the current scenario. He submitted that the jurisprudence has evolved a lot after the 1950s case of MP Sharma and sought to distinguish MP Sharma’s case contending that it was dealing with Article 20(3). He argued that a slew of later judgments have laid down that Article 21 encompasses right to privacy. Divan remarked that,

“I think it is very disappointing that a proposition is being put that Indians don’t have right to privacy as fundamental right.”

When the hearing continued on July 23, another Senior Advocate joined the chorus. Gopal Subramanium, representing another petitioner, Mathew Thomas, traced the evolution of “right to privacy” jurisprudence. He dealt at length on the manner in which law, particularly interpretation of Article 21 has evolved from AK Gopalan’s case to Maneka Gandhi. Vehemently opposing the reference to a larger Bench as suggested by AG, he submiited that,

“It is a hard fought jurisprudence which this court has developed over a period of 40 years for the people of this country. It cannot be revisited like this.”

Subramanium will resume his arguments on July 28.

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