The Supreme Court The Supreme Court

Amid the contentious issue whether the right to privacy is a fundamental right, the Supreme Court on Tuesday maintained that there has to be “overarching” guidelines to protect an individual’s private information in public domain in order to ensure that it was used only for an intended purpose. Rejecting petition of a Gujarat government lawyer that misuse of personal information could be dealt with on a “case-to-case basis”, a nine-judge Constitution bench stated that an all-embracing guideline was needed keeping in mind the size of the population.

The Chief Justice JS Khehar-led Supreme Court bench also referred to the fact that India was a signatory of a 1948 international convention which recognised privacy as a human right. With regards to arguments put forward by the Maharashtra government on the issue, the apex court said, “Even if we accept it that the Constituent Assembly dealt with it (privacy issue) and decided against including it as a fundamental right, then how you will deal with the fact that India is a signatory to the Universal Declaration on Human Rights which recognises it.”

“If I give personal information like names, parents’ name and telephone numbers for a particular purpose, then a reasonable expectation will be that it is used only for that particular purpose… (Otherwise) how we will deal with the violations?” the bench asked.

“When you have so many users, then you cannot decide on facts of each case. You have to have over-arching principles or guidelines to regulate,” the bench further said.

Representing the Maharashtra government, senior advocate CA Sundaram said the top court has been entrusted with the power of interpretation of the Constitution and the law, adding that it cannot introduce right to privacy as a fundamental right under the Constitution. “Parliament and only Parliament can do it,” he said.

“This is not a case of interpretation of the Constitution or the law. This is the case of introduction of a right as a fundamental right. This can be done only by Parliament,” Sundaram said. Pointing out that the forefathers of the Constitution had decided against including the issue of privacy as a fundamental right during the Constituent Assembly debates, he said if now it was being felt that it should be considered as a fundamental right, then only Parliament could do it.

However, the bench observed that it could not be stated that the Constituent Assembly debated every aspects of privacy.

Additional Solicitor General Tushar Mehta, who represents the Unique Identification Authority of India (UIDAI) and the Madhya Pradesh government, referred to various legislations including the Income Tax Act, the Right to Information Act and the Indian Telegraph Act and said that aspects of privacy has been protected under the statutes.

“Privacy is inherently a vague and subjective concept which is incapable of any precise definition and its contours cannot be conferred with a status of a fundamental right,” Mehta said. Commenting on the Aadhaar scheme, he stated that the State cannot track the activities of an individual by using the Aadhaar number, insisting that there are enough safeguards provided in the Act to protect personal information.

With PTI inputs

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