Giving a fresh twist to the ongoing debate whether right to privacy could be a fundamental right, the state government referred to various dictionary meanings of the term 'privacy' and said it was not a definite one, rather "an inchoate (rudimentary) expression, incapable of an exact definition".
"Privacy is a concept and my concept of privacy may be different from others including my colleagues and judges at the bench. Privacy is not a definite term, rather it is a relative term. The court cannot bring in any new separate fundamental right and the only way it can be done is through constitutional amendment," senior advocate C A Sundaram, appearing for the state, told a nine-judge Constitution bench headed by Chief Justice J S Khehar.
He rebutted the arguments of senior lawyers, who had submitted that right to privacy was an inalienable part of the Right to Life and Personal Liberty under Article 21 of the Constitution.
"Liberty without a doubt is one of the most cherished rights available to mankind and may even be traceable to pre-constitutional natural rights that are constitutionally recognised and protected. But, attempts have been made to treat the expression privacy as synonymous with liberty so as to bring it within the ambit of the Right to Life and Personal Liberty under Article 21, which is fallacious," he told the bench also comprising Justices J Chelameswar, S A Bobde, R K Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D Y Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.
Mr Sundaram said that the fallacy in treating privacy in its entire manifestation within the right to life under Article 21, was to overlook the fact that privacy and liberty were not synonymous or inter-changeable.
"Privacy is not a fundamental right. There can be rights whose violation may be considered as a violation of a fundamental right, but these rights have to trace back directly to one of those rights protected under Part III of Constitution," he said, adding that courts will be faced with dilemma as to what constitutes privacy and what does not as it is a "fluid term".
He elaborated his point saying that in a given case, privacy can be traced directly to "a fundamental right", but that will not make privacy as such a standalone fundamental right.
"To treat right to privacy itself as a fundamental right will therefore mean that one would have to define the term privacy, and then confer on it the status of a fundamental right, since no fundamental right can be included in Part III except through a constitutional amendment. The question will then arise as to whether such a definition of privacy in its entirety, can trace to a fundamental right," he said.
He added that according privacy the status of a fundamental right would amount to injecting a new right in the Constitution which would create ambiguity.
The senior lawyer referred to the debates of the Constituent Assembly and said that the framers, in their wisdom, deliberately decided against including privacy as a fundamental right under the Constitution.
He deliberated upon some apex court verdicts that had protected facets of privacy in a given scenario and said that those judgements were based on fundamental rights under Article 19 (Freedom of Speech, Expression and Profession) and Article 21 of the Constitution.
"The repository of rights are fundamental rights. Injecting anything into it is not a solution. We can't inject anything," he said.
To this, the bench said, "When you align various aspects of liberty and the Preamble then privacy right emerges."
It said that the court cannot deny a right to an individual to chose from staying in solitude or to socially co-inhabit with others.
The bench asked the lawyer whether he is suggesting right to privacy is an intangible right or not.
"Keeping away someone is tangible. I can watch pornography in my house. Someone can say it's my house I can do anything. It's my privacy," Mr Sundaram said, adding that no one is disputing that it is a common law right, but not a fundamental right.
He also cited an apex court verdict of 1975 and said that this pronouncement gave birth to the concept that right to privacy could be traced to a fundamental right, but the judges in that case had proceeded on the assumption that this right existed under the Constitution.
Mr Sundaram would resume arguments on August 1.
At the outset, Attorney General K K Venugopal, who concluded his arguments, said that the nine-judges bench has to decide as to whether verdict in MP Sharma and Kharak Singh cases rightly held that right to privacy was not a fundamental right.
"In view of the fact that large section of the people would be deprived of their basic needs and rights if the claims of the petitioners to a fundamental right to privacy is accepted, even if fundamental right to privacy is held to exist in respect of some other claim or claims, no such rights as claimed by the petitioners, should be recognised as a fundamental right," he said.
"Even otherwise, it is submitted that there can be no claim to a privacy right against identification for the purpose of public welfare and social schemes of the government, and to plug leakages and corruption in the administration of such schemes," he said in reference to the Aadhaar scheme.