NEW DELHI: The NDA government on Thursday cited a six-decade old ruling of the Supreme Court to argue that citizens could not claim right to privacy as a fundamental right, a stand which could raise the hackles of civil rights groups.

The argument, advanced by attorney general Mukul Rohatgi, ran contrary to many post-Emergency judgments of the Supreme Court expanding the right to life, guaranteed under Article 21 of the Constitution , to include the right to privacy.

The AG's argument came as he defended the mandatory nature of Aadhar scheme which has been challenged on the grounds that the intrusive nature of the information about citizens stored insecurely by the government could result in gross violation of right to privacy of individuals thus infringing Article 21.

Rohatgi reminded a bench of Justices J Chelameswar, S A Bobde and C Nagappan that an eight-judge bench of the apex court had in 1954 ruled that right to privacy was not a fundamental right. He said over the years, the court had lost sight of this judgment and digressed from it.

Stressing on the gravity of the issue, the AG requested that it be referred to a five-judge Constitution bench.

He said the over 30 judgments, which have been passed by the SC since 1954 on the right to privacy, were all authored by either two or three-judge benches which could not overrule the ruling of an eight-judge bench.

Senior advocate Shyam Diwan, appearing for one of the petitioners, objected to the AG's plea and said the Constitution was a living document which could be expanded and interpreted in accordance with the dynamics of changing times. Terming the Centre's reliance on a six-decade old judgment as inappropriate, Diwan said many subsequent apex court verdicts have clarified the legal position on right to privacy.

Diwan said there is no need to refer the petitions to a larger bench as the Centre has not yet taken a firm stand on the issue except referring to an old verdict.

Pushed on the back foot, the AG said the Centre in its response to the petitions had "very clearly stated that it is not a fundamental right and the petitions should be dismissed on this ground itself".

Agreeing with the AG, the bench said the 1954 verdict could not be wished away and the case should be referred to a larger bench. "Prima facie we are of the view that the judgment needs to be examined. How can we ignore it? Wishing away the judgment is not good just because the times have changed after the judgment was delivered," it said.

Diwan, however, insisted that the 1954 verdict was passed in the context of criminal proceedings and search and seizure by the government authorities and has no relevance to the present case. He said the Constitution should not be interpreted narrowly.

The arguments remained inconclusive and would resume on Thursday.

Times View

Whether or not the right to privacy is a fundamental right under the Indian constitution is a matter for the Supreme Court to decide. However, there is no doubt that it ought to be a fundamental right in a modern, liberal democracy. If the SC decides that this is not the case as the law currently stands, the constitution should be amended to include this right. Like all rights, there must be reasonable restrictions placed on the right to privacy on grounds such as national security, but that is no reason for not making it a fundamental right in the first place.