The Attorney General of India began his submissions by placing two questions before the bench: first, whether M.P. Sharma and Kharak Singh was good law and second, to what extent was privacy a fundamental right?
Mr Venugopal opened his arguments by contending that life and liberty under Article 21 was not an absolute right as the death penalty and incarceration were instances of deprivation of this right. He further elaborated that as privacy was not a fundamental right and was deliberately omitted from Part III of the Constitution, Aadhar was not ultra vires of Part III. Chief Justice Khehar observed that the right to privacy not being absolute did not foreclose it from being a fundamental right, since other fundamental rights like freedom of movement were also non-absolute.
Mr. Venugopal further argued that others’ right to life trumps an individual’s liberty and making a veiled reference to Aadhar, asserted that upholding personal liberty should not result in 270 million people being deprived of access to social welfare schemes. Justice Chandrachud countered Mr. Venugopal by saying that privacy should not be given such an elitist construct and in turn referenced the health concerns of Indian women from poor economic backgrounds. He enquired if forced sterilization of women with cervical cancer could be prevented by any right other than the fundamental right to privacy.
Mr.Venugopal then posited that privacy was at best a specie of personal liberty and all the sub-species under privacy could not be elevated to the level of fundamental rights. Justice Nariman asked for an explanation on how certain sub-species of privacy could be considered fundamental rights if privacy itself was not a fundamental right to which Mr. Venugopal responded that he was only objecting to the petitioners claim that privacy was a homogenous right and that the sub-species of privacy could be tested individually to decide if they were fundamental rights. Then, Justice Bodbe and Chief Justice Khehar asked the State if it was completely ruling out privacy as a fundamental right to which Mr. Venugopal conceded that some aspects of privacy required constitutional recognition and it was for the bench to determine these aspects. Justice Nariman agreed with Mr.Venugopal that the nature of privacy rights is contextual and elucidated further that while asking a woman about her marital status or number of offspring might be acceptable asking her about the abortions she might have had would be a violation of her privacy. Similarly, disclosure of one’s transgender status might not be considered a violation of privacy.
Mr. Venugopal submitted that it would be difficult to uphold the right to privacy as a fundamental right in a developing country like India where there were bigger concerns of malnutrition, human trafficking etc. Justice Chandrachud interjected at this point and said that legitimate state interest in using Aadhar does not foreclose the possibility of the Right to Privacy being a fundamental right. He mentioned that in the absence of crystallised privacy rights, the emergency period witnessed forced mass sterilizations. Mr. Venugopal ended his arguments by reiterating that something as amorphous as privacy should not be considered a fundamental right. He prayed that the matter be shifted back to a five judge bench, as there was no claim of fundamental right violation in this case. Rejecting the request, the bench said that it would decide about the existence of the fundamental right to privacy in a detailed manner for conceptual clarity.
(The Attorney General of India, Mr. K K. Venugopal appeared for the Union of India)