Dwivedi also created a flutter saying even the Supreme Court asked and sought for a lot of personal information including aadhaar mandatorily from litigants who wanted to file public interest litigations. As a startled Chief Justice J S Khehar looked at his brother judges, Justice Chelameswar refuted the argument and said Aadhaar was only optional for filing PILs.

Emphasizing on government-sponsored welfare schemes, senior advocate Rakesh Dwivedi who represents Gujarat today told a nine-judge constitution bench of the Supreme Court deciding if right to privacy should be elevated to fundamental right that a poor man’s life and liberty too was precious and privacy claims should not in anyway defeat that purpose.

Dwivedi however said that he did not take the "extreme position" that privacy did not fall under any of the fundamental rights. He said that facets of privacy can be traced to Article 21.

Dwivedi in his bid to drive home his point also created a flutter saying even the Supreme Court asked and sought for a lot of personal information including aadhaar mandatorily from litigants who wanted to file public interest litigations. As a startled Chief Justice J S Khehar looked at his brother judges, Justice Chelameswar refuted the argument and said Aadhaar was only optional for filing PILs.

Dwivedi also argued that a benevolent scheme like Aadhaar is only opposed and rights such as privacy raised by those who commit certain wrongs.

Justice Chelameswar then countered that it was not a question of right or wrong but leakage of data and issues of privacy which was being discussed.

The court had yesterday observed that there has to be "overarching" guidelines to protect an individual's private information in public domain to ensure that it was used only for an intended purpose.

The bench had rejected Dwivedi’s argument that misuse of personal information could be dealt with on a "case-to-case basis" and said an all-embracing guideline was needed keeping in mind the size of the population.

The bench, headed by Chief Justice JS Khehar, also referred to the fact that India was a signatory of a 1948 international convention which recognised privacy as a human right.

Earlier Justice D Y Chandrachud said India is an economic powerhouse because of 1.3 billion people and their knowledge economy and it will be kept in mind that “privacy must not stifle that economy”.

OTHER POINTS BY DWIVEDI

1. Privacy as a mercurial abstract concept cannot be located in Part 3 that is fundamental rights

2. Raised the public health issue where health data needs to be collected documented and analysed.

3. Liberty and dignity in preamble are narrow domains

4. Dignity has got nothing to do with privacy but only with fraternity.

5. Even poor people's life and liberty are important. Privacy claims must not defeat that purpose.

Dwivedi’s argument was almost in line with Attorney General K K Venugopal who said there can be no claim to a privacy right against identification for the purpose of public welfare and social schemes of the government and to plug leakages and corruption in the administration of such schemes.

“There can be no claim to a privacy right against identification for the purpose of public welfare and social schemes of the government and to plug leakages and corruption in the administration of such schemes. It may be pointed out that the importance and utility of aadhaar for delivery of public services like the PDS, curbing bogus admissions in schools and verification of mobile number subscribers has not only been upheld but endorsed and directed by the supreme court”, the Attorney General had said

DWIVEDI CONCLUDES; GOPAL SHANKARANARAYANAN BEGINS

Advocate Gopal Sankaranarayanan, making submissions on behalf of the Centre for Civil Society, has contended that only certain aspects of right to privacy may be declared to be a part of Article 21. The legislature, he said, in its own wisdom, has chosen certain specific categories of privacy rights and afforded them statutory security, which includes procedural protections and penal consequences in the event of breaches. The best approach, he therefore submitted, would be to let it be decided on a case to case basis.Besides, he warned against declaration of right to privacy as a whole as a Fundamental Right, for, then, it would not be possible to waive any part of it. “The State would be barred from contractually obtaining virtually any information about a person, including identification, fingerprints, residential address, photographs, employment details, etc., unless they were all found to be not a part of the right to privacy.The consequence would be that the judiciary would be testing what aspects of privacy could be excluded from Article 21 rather than what can be included in Article 21,” he pointed out.In his submissions, Mr. Sankaranarayanan supported the correctness of the decisions rendered in the cases of M.P. Sharma v. Satish Chandra, 1954 SCR 1077 and Kharak Singh v. State of U.P., (1964) 1 SCR 332. He based the premise on several judgments which have “attributed the genesis of the discussion on the right to privacy to these two judgments”.He, thereafter, submitted that the majority in the A.K. Gopalan case did not say what the majority in Cooper erroneously presumed they did, i.e. that the complete code theory was accepted and applied. He submitted in this regard, “In fact, on the very facts of the case, the detention of the Petitioner was examined with reference to Article 22 and Article 21 with the latter taken to supplement the former. If the above complete code proposition was correct, there would have been no reason for the Gopalan judgment to become the cause celebre in our Constitutional history for its rejection of the due process argument.It was therefore an error on the part of the Cooper majority to presume that for the previous two decades the law had been to exercise judicial review on individual fundamental rights without going further.”Mr. Sankaranarayanan, therefore, refuted the proposition put forth by the Petitioners that in view of Cooper overruling Gopalan, the judgments in M.P. Sharma and Kharak are no longer good law.