Skip to main content

Govt of India: Right to privacy is too amorphous in developing countries, overrides food, clothing, shelter

KK Venugopal
By Our Representative
The Government of India has said that privacy is not a fundamental right, amd that it is too vague to qualify it as such. Appearing for the Centre in the Supreme Court, Attorney-General KK Venugopal argued that there can be "no independent right called right to privacy, and that privacy is only a sociological notion, not a legal concept."
If privacy were declared a fundamental right, Venugopal said, then it can be a qualified right. He asked the nine-judge constitution bench, hearing the tangled issue on whether aadhaar was a violation of the right to privacy,  that only some aspects of privacy could be considered fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest.
Elucidating, Venugopal sought to argue that in developing countries something as amorphous as privacy couldn't be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy. Observers wanting aadhaar to be linked with the right considered the argument bizarre.
The bench resumed hearings in the Supreme Court to settle the question on whether there exists a fundamental right to privacy in India before looking into the aadhaar issue. The bench, said Justice Nariman, “will decide the issue once and for all for conceptual clarity for the nation.”
In a development considered important, several non-BJP ruled states decided to join the issue on the side of the petitioners and argued that there does exist a fundamental right to privacy in India.
Kapil Sibal
Last week, a galaxy of lawyers argued for privacy as a fundamental right. This included Soli Sorabjee, Anand Grover, Arvind Datar, Meenakshi Arora, S Poovayya. Senior advocate Shyam Divan who argued in the PAN-Aadhaar case that Aadhaar was like an “electronic leash” on the people also appeared for the petitioners.
"The government’s contention, riding on the back of the Kharak Singh judgement, which had raised the question on privacy as a fundamental right, did not seem to convince the bench", claimed civil society group Rethink Aadhaar, campaigning for right to privacy as a fundamental right.
"There have been 40 judgements since then reiterating the right to privacy", it added.
Rethink Aadhaar, in a statement, said, "In fact, the government has itself, in its earlier submissions in the aadhaar matter, not contested privacy as a fundamental right. Finance Minister Arun Jaitley said so on the floor of the House. Further, in the WhatsApp case, the government has this week argued for the right to privacy."
Senior advocate Kapil Sibal, who appeared for the states of Karnataka, West Bengal, Punjab, and the Union Territory of Pondicherry, said that privacy was indeed a fundamental right, but added, it was not absolute, and the court would have to strike a balance between rights and restrictions.
Sibal's contention that the contours of privacy would have to considered afresh made Chief Justice of India JS Khehar telling him that the concern at present was only whether privacy was a fundamental right.
Responding to Justice J Chelameshwar’s question on the location of a potential fundamental right to privacy, Sibal suggested it was Article 21, but also maintained that it is an inalienable natural right that inheres in all human beings.
Counsel for the state of Himachal Pradesh, JS Atri, made a brief submission supporting privacy as a fundamental right and being part of personal liberty flowing from the Preamble to the Indian Constitution. The government is likely to continue its submission.

Comments

Uma said…
Aadhar is necessary for subsidies and other monetary benefits to reach the correct recipients. However, if the government announces that only those who are eligible for the benefits then many people will go for Aadhar and claim benefits under false pretexts. So the only solution as I see it, repugnant though it is, is to insist on Aadhar for everyone. As a corollary, those who avoid paying their taxes are drawn into the net--which is a good thing in an indirect way.

So while I regard Aadhar as an invasion of privacy, it seems to be a necessary evil.

TRENDING

India's GDP down by 50%, not 23%, job loss 200 million not 122 million: Top economist

By Our Representative  One of India’s topmost economists has estimated that India’s Gross Domestic Product (GDP) decline was around 50%, and not 23%, as claimed by the Government of India’s top data body, National Statistical Organization (NSO). Prof Arun Kumar, who is Malcolm S Adiseshiah chair professor, Institute of Social Sciences, New Delhi, said this was delivering a web policy speech, organised by the Impact and Policy Research Institute (IMPRI), New Delhi.

Youngest of 16 activists jailed for sedition, Mahesh Raut 'fought' mining on tribal land

By Surabhi Agarwal, Sandeep Pandey* A compassionate human being, always popular among his friends and colleagues because of his friendly nature and human sensitivity, 33-year-old Mahesh Raut, champion of the democratic rights of the marginalised Adivasi people of Gadchiroli, Maharashtra, has been in prison for over two years now.

#StandWithStan: It's about Constitution, democracy and freedom of expression

By Fr Cedric Prakash SJ*  It is more than three weeks now: On the night of October 8, 2020, the 83-year-old Jesuit Fr Stan Swamy was taken into custody by the National Intelligence Agency (NIA) from his residence in Ranchi to an undisclosed destination. According to his colleagues, the NIA did not serve a warrant on Fr. Stan and that their behaviour was absolutely arrogant and rude.

Stan Swamy vs Arnab Goswami: Are activists fighting a losing battle? Whither justice?

By Fr Sunil Macwan SJ* It is time one raised pertinent questions over the courts denying bail to Fr Stan Swamy, who was arrested under the Unlawful Activities (Prevention) Act (UAPA), and granting it to Arnab Goswami, editor-in-chief of the Republic TV, arrested under the charge of abetting suicide of Avay Naik, who ended his life in 2018. It is travesty of justice that a human rights activist is not only denied bail but is also made to wait for weeks to hear a response to his legitimate request for a straw to drink water, while Arnab Goswami walks free.

India performs 'poorly' in Quality of Life Index, ranks 62nd out of 64 countries

Counterview Desk “Expat Insider”, which claims to be one of the world’s most extensive surveys about living and working abroad, in a survey of 20,259 participants from around the globe, has found that of the 64 destinations around the globe, has found that while Taiwan is the best destination for persons living outside their native country, closely by Vietnam and Portugal, India ranks 59th.

Human development index: India performs worse than G-20 developing countries

By Rajiv Shah A new book, “Sustainable Development in India: A Comparison with the G-20”, authored by Dr Keshab Chandra Mandal, has regretted that though India’s GDP has doubled over the last one decade, its human development indicators are worse than not just developed countries of the Group of 20 countries but also developing countries who its members.

Buddhist shrines massively destroyed by Brahmanical rulers in "pre-Islamic" era: Historian DN Jha's survey

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Namaz in Mathura temple: Haridwar, Ayodhya monks seek Faisal Khan's release

By Our Representative As many as 23 members of the Hindu Voices for Peace (HVP), including the founder president of the well-known Haridwar-based Matri Sadan Ashram, Swami Shivananda Saraswati, and a one of its top monks, Brahmachari Aatmabodhanand, have expressed their “dismay” over the arrest of Khudai Khidmatdar chief Faisal Khan and three others on charges of “promoting enmity between religions” and “defiling a place of worship” after they offered namaz in Mathura’s Nand Baba temple premises on October 29.

Government of India 'refuses' to admit: 52% of bird species show declining trend

Finn's Weaver  By Our Representative The Government of India has been pushing out “misleading” data on the country’s drastic wildlife decline, says a well-researched report, pointing towards how top ministers are hiding data on biodiversity losses, even as obfuscating its own data. It quotes “State of India’s Birds Report 2020” to note that of the 261 out of 867 bird species for which long-term trends could be determined, 52% have declined since the year 2000, with 22% declining strongly.

Dalit, Adivasi protest in Jharkhand against 'illegal' transfer of land for development

By Rishit Neogi Displacement and eviction are not new terms. It is surprising that they are still continuing and have become a tool in the hands of state backed corporates to forcibly occupy lands in the name of development.