The Supreme Court continued to subject the debate on constitutional status for the right to privacy to close scrutiny, saying economic rights of citizens and provision for food and other essential items could never be a ground to undermine basic fundamental rights.
This observation came when senior advocate C A Sundaram, appearing for the Maharashtra government, reiterated the Centre’s stand that right to privacy would always take a back seat when it came to Aadhaar, which enabled the government to secure right to food, a more important right, for millions of poor living below poverty line. “What is better— two square meals or right to privacy,” he asked.
Justice D Y Chandrachud, part of a nine-judge bench headed by Chief Justice J S Khehar, asked: “Does it mean the cherished constitutional rights are subservient to certain economic developments? Can two square meals be promised in return for barring people from protesting, forming association or giving up other fundamental rights? This can never be. We must guard against this tendency.”
Justice J Chelameswar said: “It is a very cruel choice one can give to citizens – two square meals or right to privacy.” Justice R F Nariman said: “In the era when personal liberty and fundamental rights are being given a wider meaning, how can you argue for contracting the width of fundamental rights?”
Sundaram repeatedly clarified that he was not against right to privacy as a statutory right. “Privacy is, in fact, protected by several statutes in several forms, be it Indian Post Office Act, Aadhaar Act, Income Tax Act or others. I am all for statutory protection to privacy. But, giving it a homogenous shape as right to privacy and introducing as a standalone fundamental right would not be proper,” he said.
He said it was one thing for the SC to interpret an existing fundamental right to rule that right to privacy was part of it, but quite another to rule it as a standalone fundamental right. “The Supreme Court must remember that interpretational route to specify a right is far apart from introducing right to privacy in the Constitution despite the Constitution-makers specifically considering, debating and then rejecting it.”
“Parliament alone can consider, debate and elevate a common law right as fundamental right in the Constitution, not the Supreme Court,” he said. When the Bench said India had an obligation to respect right to privacy as it had signed the UN Declaration on Human rights, Sundaram said India’s obligation to respect international treaty mandates was under Article 61 of Directive Principles of the Constitution, which was not an enforceable right.
Appearing for Unique Identification Authority of India (UIDAI), additional solicitor general Tushar Mehta said the petitioners’ apprehension that personal data collected for Aadhaar would be used by the government to track activities of citizens is unfounded.