The Government on Wednesday told the Supreme Court (SC) that citizens do not have a guaranteed fundamental right to privacy.
Defending the Aadhaar card scheme, Attorney-General (AG) Mukul Rohatgi told a three-judge Bench that makers of the Indian Constitution never intended to introduce privacy as a fundamental right.
In support, he cited a SC decision of 1954 where an eight-judge Bench in MP Sharma vs Satish Chandra case declared, “When the Constitution makers have thought it fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right by some process of strained construction.”
The AG strongly argued that to remove all ambiguity in this matter, the petitions challenging the Aadhaar card scheme be sent to a Constitution Bench of not less than five judges. Rohatgi also said that the eight-judge Bench decision still holds as all subsequent decisions of the apex court relating to right to privacy were by Benches of lesser composition.
Taking note of the point made by the AG, the Bench headed by Justice J Chelameswar observed that there are various judgements upholding the right to privacy and there is also an eight-judge Bench judgement to the contrary. “We have to first get over this to decide the issue,” he said.
The petitioners said that the issue of right to privacy was not before the court in the Aadhaar case. In response to the AG’s argument, senior advocate Shyam Divan said that the AG has stated the fact that privacy as a right finds no mention in the Constitution. It would be disappointing, he added, to see the Government taking a position that the right to privacy was not a fundamental right after about 25 judgements of the SC laying down so.
Divan argued that the 1954 decision by the eight-judge Bench was passed in the context of Article 20(3) and not Article 21, where the court examined whether the power of search and seizure amounted to the accused being forced to provide self-incriminating evidence.
All subsequent decisions by the SC discussing privacy emerged out of Article 21 (Right to live). But the Bench told Divan, “I don’t think it is right for democratic functioning of the country where the Government holds a different view on the right to privacy.”
“Prima facie, we are of the opinion it has to be referred to a larger Bench,” observed Justice Chelameswar.
The Bench, also comprised Justices SA Bobde and C Nagappan. The hearing will resume on Thursday.