“Privacy a fundamental right, but wholly qualified”, Centre to Supreme Court

“Privacy a fundamental right, but wholly qualified”, Centre to Supreme Court

Murali Krishnan

The central government today made some interesting submissions before the 9-judge Bench of the Supreme Court hearing the Right To Privacy matter.

Appearing for the Centre, Attorney General for India KK Venugopal continued his arguments post lunch. He said that the Right to Privacy could qualify as a fundamental right. However, there was a rider attached to that submission.

Venugopal also argued that the right stems from the fundamental right to life and personal liberty.

Further, he said that not every instance of this sub-species of Article 21 would qualify as a fundamental right.

These submissions are in slight variance with the earlier stance of the Centre that the right is not a fundamental right and judgments subsequent to MP Sharma and Kharak Singh are per incuriam.

Below are excerpts from the submissions made by the Attorney General.

  • Judgments in MP Sharma and Kharak Singh will not have much force here since this is a 9-judge Bench.
  • Right to Life is a pre-existing right, as can be understood from the wording of Article 21 – “deprived of life or personal liberty”.
  • Concept of deprivation of the Right to Life is also in-built on Article 21 – through a procedure established by law.
  • It took us more than 20 years to lay down that the procedure contemplated under Article 21 should be just and fair, after importing the substantive “due process” concept from United States of America.
  • There are different species of personal liberty. They are all not entitled to the status of a fundamental right automatically.
  • Each of them have to be scrutinised in the context in which it is claimed.
  • Right to Privacy may be a species of right covered by Right to Personal Liberty. But this right has a large number of sub-species and all of them cannot be elevated to the status of fundamental right. Your Lordships have to look into each of them separately.
  • The question is whether Your Lordships will combine a multitude of rights, call it Right to Privacy and elevate it as a fundamental right or will you consider each and every sub-species as and when it comes before this Court?
  • There could be a Fundamental Right to Privacy but it is a wholly qualified right. Since it consists of diverse aspects and is a sub-species of liberty, every aspect of such species will not qualify as a fundamental right.

The hearing in the case will continue tomorrow.

Read the arguments made in the morning session here.

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