NEW DELHI: The Supreme Court on Tuesday said 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. A nine-judge Constitution bench, dealing with the contentious issue whether right to privacy is a fundamental right, rejected plea of a Gujarat government lawyer 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. Referring to arguments put forward by the Maharashtra government on the issue, the 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."
The bench, which also comprised justices J Chelameswar, SA Bobde, RK Agrawal, RF Nariman, AM Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, said that there has to be an "overarching" or all-embracing guideline to ensure that the private information of individuals, put in public domain, was used only for an intended purpose.
"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?" it asked. On the issue that a large number of people have put their personal information in public domain, the bench said, "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." At the outset, senior advocate CA Sundaram, representing the Maharashtra government, said the apex court has been entrusted with the power of interpretation of the Constitution and the law and 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. He then referred to the terms, interpretation, introduction and interruption and said that the courts could interpret, but not introduce privacy as a fundamental right.
In the Constituent Assembly debates, the forefathers of the Constitution had considered the issue of privacy and decided against including it as a fundamental right and if, now it was being felt that it should be considered as a fundamental right, then only Parliament could do it, he said.
The bench, however, said that it could not be stated that the Constituent Assembly debated every aspects of privacy. Sundaram said some aspects of privacy can be traced to Article 21 (Right to Life and Personal Liberty) of the Constitution, but it cannot be held as a fundamental right. On the issue of data protection, he said that Article 300 of the Constitution dealing with common law rights may be taken recourse to in a case of a violation. Right to privacy was "statutorily" protected and there was no need to elevate it as a fundamental right to deal with any possible infringement, he said. He submitted that Article 21 refers to the term "personal liberty" and not "liberty or civil liberty" and the term personal liberty means physical liberty only.
"Instead of expanding the scope of fundamental rights, you are saying that contract the scope of the fundamental right to liberty," the bench said. Responding to the query of the bench that India was a signatory of an UN declaration, the senior lawyer said that an international obligation can be fulfilled by enacting a separate statute and there is no need of its inclusion as a fundamental right. Additional Solicitor General Tushar Mehta, representing 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. Several legislations protect the aspect of privacy and being a common law right, it need not be elevated in the category of the fundamental rights, he argued.
"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. The legislature has been granting protection to the various aspects of "common law right to privacy" through statutes, he said. He also referred to the prevalent practices in various countries and said there were instances where privacy was not conferred the status of a constitutional right.
Referring to the Aadhaar scheme, he said that even the State cannot track the activities of an individual by using the Aadhaar number and moreover, there are enough safeguards provided in the Act to protect personal information.
Another senior advocate Rakesh Dwivedi, appearing for the Gujarat government, said that he did not take the "extreme position" that privacy did not fall under any of the fundamental rights.
He, however, said that facets of privacy can be traced to Article 21. The arguments would continue on Wednesday in the apex court which said that it might reserve the verdict in the matter.