Right to privacy can't be secondary to economic rights: SC

The Supreme Court, continuing to examine the issue of right to privacy as a fundamental right vis--vis the Aadhaar identification system, on Tuesday said economic rights of citizens like the provision of food and other essential items could not be a ground to undermine basic fundamental rights.

This observation came when senior advocate C A Sundaram, appearing for the Maharashtra government, reiterated the Centre's stand that right to privacy would take a back seat when it came to Aadhaar, which enabled the government to secure the right to food, a more important right, for millions of poor living below poverty line.

"What is better - two square meals or right to privacy?" Sundaram asked.

Justice D Y Chandrachud, part of a nine-judge Constitution Bench headed by Chief Justice J S Khehar, asked, "Does it mean the cherished constitutional rights are subservient to certain economic developments? Can two square meals be promised in return for barring people from protesting, forming an association or giving up other fundamental rights? This can never be. We must guard against this tendency."

The bench also rejected the contention of an advocate for the Gujarat government that misuse of personal information could be dealt with on a ''case-to-case basis'', saying an all-embracing guideline was needed keeping in mind the size of the population.

The bench further pointed out that India was a signatory to a 1948 international convention which recognised privacy as a human right.

Justice J Chelameswar said, "It is a very cruel choice to give to citizens - two square meals or right to privacy."

Justice R F Nariman added, "In an era when personal liberty and fundamental rights are being given a wider meaning, how can you argue for contracting the width of fundamental rights?"

Sundaram repeatedly clarified that he was not against right to privacy as a statutory right. "Privacy is, in fact, protected by several statutes in several forms, be it the Indian Post Office Act, Aadhaar Act, the Income Tax Act or others. I am all for statutory protection to privacy. But giving it a homogenous shape as right to privacy and introducing as a standalone fundamental right would not be proper," he argued.

He said it was one thing for the SC to interpret an existing fundamental right to rule that right to privacy was part of it, but quite another to rule it as a standalone fundamental right. "Parliament alone can consider, debate and elevate a common law right as fundamental right in the Constitution, not the Supreme Court," he said.

When the Bench said India had an obligation to respect right to privacy as it had signed the UN Declaration on Human rights, Sundaram said India's obligation to respect international treaty mandates was under Article 61 of Directive Principles of the Constitution, which was not an enforceable right.

The Bench, which along with the chief justice comprises Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y 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.

With a large number of people having put their personal information in public domain, the bench said, ''When you have so many users, then you cannot decide on the facts of each case. You have to have over-arching principles or guidelines to regulate.''

The arguments are expected to continue today in the apex court which said that it might reserve its verdict in the matter.