Understanding the ‘Elitist’ Argument against the Fundamental Right to Privacy

The unanimous Right to Privacy judgment of the nine judges’ bench of the Supreme Court delivered on 24th August, 2017 has been widely heralded as the dawn of a new era in the constitutional jurisprudence of India. But rarely has there been a negative fundamental right read into the available fundamental rights by the Supreme Court which has such a far reaching consequence, especially if one goes by the scope of the right to privacy as identified in the judgment delivered by Justice D. Y. Chandrachud for himself and three other judges including the then Chief Justice, Justice J. S. Khehar. The Supreme Court though has rightly rejected this argument by refusing to treat “right to personal liberty” as the only possible source for right to privacy” but interestingly Justice Chandrachud by citing Prof. Amartya Sen tries to argue as to how the presence of civil and political rights augurs well for the socio-economic rights and therefore the argument of primacy of socio-economic rights over civil and political rights is not a very convincing argument. The acceptance of the Parliament’s repeal of right to property as a fundamental right by the Supreme Court, in favour of an egalitarian socio-economic regime is ample testimony to the fact that socio-economic rights have been preferred over civil and political rights by the Court in the past too. Amartya Sen is his book “The Idea of Justice” has argued that the “exclusion of all economic and social rights from the inner sanctum of human rights keeping the space reserved only for liberty and other first-generation rights, attempts to draw a line in the sand that is hard to sustain.” Viewed in this context the argument of the Union of India certainly appears to be flawed when it argued that there is no right to privacy but when one examines the possible reasons for this argument, one would find that this was primarily to negate the possibility of a challenge to the Aadhar Act, however, despite the rejection of this argument by the Supreme Court, the Aadhar Act can still be saved by arguing that right to privacy in this context must be read as subservient to the cause of better enabling of access to basic human needs and other measures directed towards good governance, which the Aadhar law ostensibly tries to ensure.