A nine-Judge Constitution Bench today reserved its verdict on the question of right to privacy that has been sought to be declared a fundamental right. The Bench, headed by Chief Justice of India JS Khehar, heard several senior advocates, including Attorney General KK Venugopal, for six days in its endeavour to reach a conclusion on the contentious issue. The issue of right to privacy was referred to the nine-Judge Bench after it was pointed out that two earlier decisions of eight-Judge and six-Judge Benches had ruled that right to privacy was not a fundamental right under the Constitution. The verdict, which would lay down the law on right to privacy, is expected by August 27 when CJI Khehar retires. The fate of the government’s ambitious Aadhaar scheme would be decided by a three-Judge or five-Judge Bench separately on the basis of the law declared by the nine-Judge Bench. Venugopal has already conceded that the right to privacy is a fundamental right, but a qualified one and the government had a right to regulate it through a law.
Maharashtra told the Bench that courts cannot introduce right to privacy as a fundamental right under the Constitution. “This is not the case of interpretation of the Constitution or the law. This is the case of introduction of a right as a fundamental right. This can be done only by Parliament,” senior counsel CA Sundaram said on behalf of Maharashtra.
On Wednesday, senior advocate Rakesh Dwivedi told the Bench on behalf of Gujarat that some aspects of privacy may be traced to various fundamental rights, but providing basic personal information to authorities was needed to bring more transparency in the technological era. Dwivedi said even the top court asked for a lot of personal information, including Aadhaar number, from litigants wanting to file PILs. But the CJI contradicted him. Advocate Gopal Sankaranarayanan — who represented Centre for Civil Society — said fundamental rights could not be waived and, if privacy was given the status of a fundamental right, it would make every contract involving waiving of fundamental rights void. “When we use an app, it asks us whether it can access the contact list, pictures, etc., and we invariably say yes. Thus we are waiving our privacy. But if we raise privacy to the status of a fundamental right, it cannot be waived,” Sankaranarayanan submitted.