Privacy a fundamental right? 9-judge SC bench will decide

NEW DELHI: The Supreme Court on Wednesday expressed strong reservations about declaring right to privacy a fundamental right, and said privacy could never be an absolute entitlement with the state having no power to restrict it.“You all are arguing as if right to privacy should be declared as an absolute right. What should be its width and contour? What should be the reasonable restrictions attached to it? Right to privacy cannot be so absolute and overarching that the state is prohibited from legislating restrictions on it,” a nine-judge bench told petitioners who argued for privacy to be treated as fundamental right.The remarks came on the opening day of the hearing by the CJI J S Khehar-led bench to settle the question of whether right to privacy, which is not guaranteed under the Constitution, can be included among the fundamental rights The judicial exploration of whether the right to privacy can be a fundamental right saw a nine-judge SC bench directing a whole set of searching questions at the lawyers representing petitioners. Senior advocate Gopal Subramanium said privacy was embedded in all forms of liberty, which stood at the core of an individual’s fundamental rights.He drew support from former attorney general Soli J Sorabjee, who said even though right to privacy did not find mention in the Constitution, it continued to be an “inalienable right” inherent in every human being. “Right to privacy can be deduced from other fundamental rights as was done by the SC while terming freedom of press as part and parcel of right to freedom of speech and expression despite freedom of press not finding mention in the Constitution,” Sorabjee said.Questioning counsel’s attempt to link privacy to liberty, the bench said, “Every element of liberty is not privacy. Like right to dissent is part of liberty but it is not right to privacy. If we declare right to privacy as a fundamental right, will it permit the government to enact a law prohibiting social media from making personal details of its users public? So, what will be the obligations of a state in such a situation?” The enormity of crystallising a concept which has remained amorphous and can mean different things to different people became immediately obvious, putting paid to the CJI’s ambitious objective of wrapping up the hearing within a day.The bench comprising CJI Khehar and Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer will continue the hearing on Wednesday as the Centre is yet to put forward its arguments.Chelameswar, Bobde, Nariman and Chandrachud took the lead in outlining the bench’s concerns and fired a volley of questions.“There is an amorphous right called right to privacy. If we can’t define what is right to privacy and what are its limitations, can we just leave it with a declaration that it is a fundamental right? We do not know what proportions social media will attain in the next five years and the issues of privacy it would throw up. We can understand privacy in the context of cohabitation with wife, sexual orientation but can right of privacy be so broad that parents can decide whether or not to send their children to school? Should we attempt giving a broad definition to it?”