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Constitutional Validity of Privacy Rights

The respondent argues that: 1. Privacy is not an explicitly established fundamental right in the Indian Constitution. Several Supreme Court judgments have also held that there is no fundamental right to privacy. 2. Even if privacy was a fundamental right, it would not be absolute and reasonable restrictions could be imposed in the interest of public welfare. The Aadhaar program aims to further public benefits and various welfare schemes. 3. The Aadhaar scheme was established by government notification which constitutes 'law' under Article 13. Therefore, any restriction of privacy is valid according to the procedure established by law under Article 21 of the Constitution.

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13 views2 pages

Constitutional Validity of Privacy Rights

The respondent argues that: 1. Privacy is not an explicitly established fundamental right in the Indian Constitution. Several Supreme Court judgments have also held that there is no fundamental right to privacy. 2. Even if privacy was a fundamental right, it would not be absolute and reasonable restrictions could be imposed in the interest of public welfare. The Aadhaar program aims to further public benefits and various welfare schemes. 3. The Aadhaar scheme was established by government notification which constitutes 'law' under Article 13. Therefore, any restriction of privacy is valid according to the procedure established by law under Article 21 of the Constitution.

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praveen
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IN THE SUPREME COURT OF INDIA

W.P. (C.) No. of 2015


XYZ
. Petitioner
v.
ABC
. Respondents
Written Submissions of <Kavin (Thurupudcha kadhal >, Adv., Counsel for the
(Respondent)
OR
arguing FOR the constitutional validity of (Aadhar card and DNA profiling)

ISSUES.
1.

Is right to privacy a fundamental right granted by indian constitution?


The constitution of India does not grant in specific and express right to privacy as such. Right to
privacy is not enumerated as Fundamental right in the constitution1. The framers of the constitution did
not want right to privacy to have a fundamental [Link] MP Sharma v Satish Chandra2 , eight judge
bench observed that right to privacy is not a fundamental right.
InJustice K S Puttaswami v Union of India, the counsel for the respondents, Attorney General Rohatgi,
has stated that for over 40 years, the judgement of a 19643 case has been wrongly interpreted by several
other small judge benches, and that there is no Fundamental Right of privacy in the Indian
Constitution.
Further in kharak sing v. state of UP4 the supreme court clearly said that right to privacy is not a
fundamental right.

2.

Whether right to privacy is absolute.


Assuming that right to privacy is a fundamental right, right to privacy is not an absolute right. And
reasonable retractions can be invoked while in the said right.
In Govind. V state of MP5the court accepted limited fundamental right to privacy as an emanation
from Art. 19(a) (d) and art 21. The right to privacy is not however absolute reasonable restrictions can
be placed there on in public interest. Thus MATHEW J observed in Govind6 Right to privacy in any
event will necessarily have to go through a case by case development. Therefore even assuming that
right to personal liberty and right to move freely throughout the territory of india and the freedom of
speech created an independent right to privacy as an emanation from them which one can characterize
as a fundamental right., we do not think that this right is absolute. Further, MATHEW J, observed on

1M P jain , Indian constitutional Law, 7th edition


2AIR 1954 SC 300
3 Kharak singh v Sate Of UP AIR 1964
4
5AIR 1975 SC 1378
6Ibid., at 1385

the same point7 Assuming that fundamental right guarantee to a citizen have a penumbral zones and
that the right of privacy is itself a fundamental right, that fundamental right must be subject to
restriction on the basis of compelling public interest.
Right to privacy has been read into article 21 with the expansive interpretation of the personal liberty
by the supreme court, but this right is not absolute and if there were conflicts between Fundamental
rights of two parties the right wich advances the public at large would prevail.8In the present case the
Aadhar card issued by the govt. has an objective of greater public benefits. Various schemes have been
implemented under aadhar that are for the greater benefit of the public. India is country where people
do not have access to food, through the various schemes of aadhar the govt. is trying to bring in various
subsidies by which the consumer will directly be benifited without any interruption by any middle man.
Alternative argument
Art. 21 of Indian constitution states No person should be deprived of his right to life and personal
liberty except according to the procedure established by law. In the present case, the aadhar scheme of
the govt. was established through a notification. And according to art. 13 (3) (a) law includes any
ordinance, order, by-law, rule, regulation, notification, custom or usage having in the territory of India
the force of law. Hence the restriction in the art. 21 of Indian constitution is valid and right to privacy
can be breached as it is not absolute.

7Ibid., at 1386
8Sharda v Dharampal (2003) 4 scc 493, 513 relying on , Govind v. State of MP (1975) 2 SCC 148, X v Hospital
Z (1998) 8 SCC 296

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