NEW DELHI: Right to privacy cannot be an absolute right and the State may have some power to put reasonable restriction, the Supreme Court said on Wednesday while examining the issue whether it can be declared as a fundamental right under the Constitution.
A nine-judge Constitution bench, headed by Chief Justice JS Khehar, also asked the Centre and others to assist it about the “contours” and ambit of test on which the width and scope of right to privacy and its infringement, if any, by the State would be tested.
The bench then referred to the apex court judgment, criminalising gay sex and said if right to privacy was construed in its widest sense, then the verdict in the Naz Foundation case “would become vulnerable”. The NGO, Naz Foundation, has been fighting a legal battle for decriminalising consensual unnatural sex including lesbians, gays, bisexuals and transgenders.
During the day-long hearing, the bench, also comprising Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, said, “Right to privacy is an amorphous right and not absolute. It is only a small sub-sect of liberty.”
It then gave illustrations including that giving birth to offsprings might fall under right to privacy and the parents could not say that the government did not have the power to direct sending every child to schools. It also referred to issue of data protection and said that its ambit was “much wider” than right to privacy and “cataloguing the contents of privacy” has the danger of limiting the right itself.
“We live in an age of big data and the state is entitled to regulate the data whether it is for the purpose of regulating crime, taxation or other activities... Right to privacy cannot be so absolute that it prevents the State from legislating or regulating it,” the bench said.
If a bank has sought personal details for disbursing loans then it could not be said to be an infringement of right to privacy, it said, adding that the issues like one’s sexual orientation and the bedroom details were covered under right to privacy.
Senior advocate Gopal Subramanium, appearing for one of the petitioners, initiated the arguments and said right to privacy was an “inalienable” and “inherent” to the most important fundamental right which the right to liberty.
He said the right to liberty, which also included right to privacy, was a pre-existing “natural right” which the Constitution acknowledged and guaranteed to the citizens in case of infringements by the State.
“Liberty is the fundamental value of our Constitution. Life and liberty are natural existing rights which our Constitution acknowledges and guarantees. How can liberty be at all experienced without privacy?,” he asked. Subramanium, at the outset, referred to apex court verdicts to highlight the process of interpretation of fundamental rights by it and assailed the two judgements delivered in M P Sharma and Kharak Singh cases by an eight- judge and six judge benches in 1954 and 1962 respectively in which it was held that right to privacy was not a fundamental right.
The issue of right to privacy as a fundamental right was deliberated upon by the court in the two cases.
“It is submitted that the decision in the 1954 and 1962 cases, to the extent they interpret fundamental rights on a distinctive basis (as recognised in the A K Gopalan case of 1950) are no longer good law.
“In view of the fact that the A K Gopalan case stands overruled in the R C Cooper case (of 1970), it follows a fortiori (from a stronger argument) that neither of the above decisions are effective.”
He assailed the M P Sharma verdict which had held that right to privacy was not a fundamental right, saying that the M P Sharma case was not “an authority for the proposition that there is no fundamental right to privacy in the Constitution”.
He argued that right to privacy is inherent to the right to liberty and the Constitution “mediates” between the citizens and the State and the concept of privacy is “embedded in liberty as well as honour of a person”.
WHAT THE COURT SAYS
“We live in an age of big data and the state is entitled to regulate the data whether it is for the purpose of regulating crime, taxation or other activities... Right to privacy cannot be so absolute that it prevents the State from legislating or regulating it.”