Basis of right to privacy as fundamental right an assumption: Maharashtra govt

NEW DELHI: The Supreme Court on Thursday stared at a legal vacuum as Maharashtra government, through senior advocate C A Sundaram, demonstrated that the 40-year-old judicially laid down foundation for

privacy as a fundamental right

was a misnomer.

Despite two categorical judgments - one by an eight-judge bench in 1954 (M P Sharma case) and another by a six-judge bench in 1962 (

Kharak Singh

case) - declaring that privacy was not a fundamental right, a three-judge bench verdict in 1975 in `Govind vs

Madhya Pradesh

' was widely believed to have ruled that right to privacy was a fundamental right and this assumption was blindly followed by SC benches over the last 40 years.

A nine-judge bench headed by Chief Justice J S Khehar has undertaken the task of determining the constitutional status of right to privacy , mainly to overcome the hurdle posed by the eight-judge and six-judge benches.

Petitioners who had challenged Aadhaar on the ground that it violated right to privacy had relied on smaller bench judgments in the last 40 years to caution the apex court against changing what they called the four-decade-long judicial recognition given to right to privacy as a fundamental right.

When Sundaram attempted to substantiate his argument that privacy was not a fundamental right, he faced a volley of questions from the bench, also comprising Justices

J Chelameswar

, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S A Nazeer.

In reply, Sundaram attacked the fountainhead of right to privacy -the 1975 judgment which held sway for the last four decades.

Sundaram and advocate Rohini Musa read out several paragraphs from the 1975 judgment to point out that the three-judge bench had caveated the verdict with "if privacy was assumed to be a fundamental right". He said there was no logic nor analysis to arrive even at the assumption that privacy formed part of the bouquet of fundamental rights guaranteed to every citizen by the Constitution. "Every subsequent judgment blindly followed the Govind verdict without reason or explanation as to why privacy is a fundamental right," he said.

As the facts came out, a sense of disbelief swept the packed CJI's courtroom, including petitioners who had relied heavily on the Govind verdict. The discovery briefly lulled the bench's instinctive approach to question any counsel arguing against privacy's prime importance in the sphere of fundamental rights.

The bench drew Sundaram's attention to present day reality, when rapid technological advance is making individual privacy increasingly vulnerable. "Do we have a robust data protection regime to protect and secure personal information?" it asked, indicating its willingness to look at privacy afresh without being burdened by past rulings. "If we accept privacy as a constitutional right, it will have to be part of personal liberty and right to life guaranteed under Article 21 of the Constitution," it said.

Sundaram responded by reading from

Constituent Assembly

debates and said the framers of the Constitution had considered a proposal to make right to privacy a standalone fundamental right but discarded it after elaborate debate.