It’s a bit late for this to happen, but better late than never: the State of Karnataka is looking to intervene in the Right to Privacy case, reports DNA. The state, currently being governed by the opposition Congress (I) party, is expected to oppose the views of the Central government, which has been arguing since 2015 that privacy isn’t a fundamental right. Lawyer Kapil Sibal, who was Minister for Law, Telecom and Education with the last government, is set appear for the State of Karnataka, which becomes the first state to intervene in this case.
Whether they will be allowed to intervene in this instance remains to be seen though: that will be the prerogative of the Supreme Court. Last Tuesday, the Chief Justice had decided, after deliberating over how much time the petitioners and the government should be given in front of the nine judge constitution bench, to give 2.5 hours to the petitioners, and finish the hearings in a day. The hearings have far exceeded that limit, with as many as 20 cases being clubbed together (see page 9 of 175 here) multiple petitioners being heard last week. Notes from the hearings: Day 1, Day 2, courtesy live tweets from lawyers Prasanna S and Gautam Bhatia. The petitioners were to have finished last week, the central government (Union of India) is expected to be heard, starting Tuesday. If the Supreme Court allows the State of Karnataka to intervene, it will mean more time for the petitioners. Why they’ve waited this long to intervene is beyond us.
The difference in the approach: UPA vs NDA
Remember that it was the United Progressive Alliance (UPA) government, led by the Congress (I) that had introduced Aadhaar, which has led us to this debate on the Right to Privacy. However, during the UPA regime, the government never argued against the right to privacy as a fundamental right. That was brought up by Mukul Rohatgi, the then Attorney General, in 2015, under the NDA/BJP government. Rohatgi had said that, after repeatedly saying that there is no fundamental right to privacy, that “The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.”
Last week, on Tuesday, before a five judge bench, the current Attorney General, KK Venugopal, had also contended that privacy is not a fundamental right, saying “We concede that this (Privacy) is a common law right, but the right to privacy is not guaranteed under the constitution”, adding that the right to privacy was consciously omitted by the founding fathers. He said that there were six aspects of surveillance, and the only aspect that has been upheld is that your house is your castle (and the state can’t enter it without due process).”
DNA quotes the Karnataka Additional Advocate General Devadutt Kamat as saying that the right to privacy may not be absolute, but the state can’t prey upon this data without just cause and reason, and that it is the dutry of the state to protect personal data of citizens.