The Supreme Court has issued a notice to Centre on PIL seeking abortion for a 10-year-old rape survivor. (FIle) The Supreme Court has issued a notice to Centre on PIL seeking abortion for a 10-year-old rape survivor. (FIle)

The Centre on Wednesday told the Supreme Court that “there is a fundamental right to privacy, but it is a wholly qualified right”. The apex court was hearing the Aadhaar card privacy issue. Right to privacy could be a fundamental right, but it could not be absolute, Attorney General K K Venugopal submitted before a nine-judge constitution bench headed by Chief Justice J S Khehar.

“There may be a fundamental right to privacy and it has to be a qualified right since it covers diverse aspects and a sub-species of the Right to Liberty. Every aspect or sub-species cannot qualify to be a fundamental right,” he said.

“Right to privacy can’t be one homogenious right. It’s not absolute and is rather qualified to be elevated to the level of fundamental right. Privacy will be one species which comes under right to liberty,” he said.

A wholly qualified right is one where government interference is allowed in special circumstances, and only when necessary in a democratic society as opposed to an absolute right, which cannot be limited in any way. An absolute right can not be reduced or amended.

Venugopal also argued that privacy as a fundamental right was deliberately avoided from Article 21. “Privacy, as a fundamental right, could have been mentioned in 21, but has been omitted. This was deliberate,” said Venugopal.

Venugopal, who was arguing for the government, also said “the rights under 21 are not absolute. That is why we have the death penalty for gross crimes and incarceration for crimes.” He also argued that right to life “transcends” right to privacy.

The nine-judge Constitution bench, headed by Chief Justice of India Jagdish Singh Khehar, began their hearing in the case in which petitioners contest that the twelve-digit biometric unique identification card raises privacy threat. The petitioners had completed their argument in the apex court on July 20.

“The issue is simple. Is there a fundamental right to privacy under the Indian Constitution? The view that existed earlier was an opinion that different fundamental rights were individual and distinct. And that Article 21 was a residuary right. The basic freedoms were under article 19,” Advocate Gopal Subramanium, who is appearing for the petitioners, said on Tuesday. He also argued that privacy is embedded in all processes of human life and liberty.

The bench is dealing with the limited issue of right to privacy and matters challenging the Aadhaar scheme would be referred back to a smaller bench.

Meanwhile, four non-BJP ruled states, including Karnataka and West Bengal, have moved the Supreme Court seeking to intervene in the ongoing hearing on the issue of whether the Right to Privacy can be declared as one of the Fundamental Rights under the Constitution.

Besides Karnataka and West Bengal, two Congress-led states of Punjab and Puducherry took a stand opposite to the Central government which had said that Right to Privacy is a common law right and not a Fundamental Right.

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