A nine-judge SC bench was set to discuss the constitutionality of Right to Privacy on Wednesday.
The bench headed by Chief Justice J S Khehar expressed strong reservations about declaring right to privacy a fundamental right and said privacy could never be an absolute entitlement with the state having no power to restrict it.
Representing the petitioners, senior lawyer Gopal Subramanium had argued that the rights to life and liberty are pre-existing natural rights. "Privacy is embedded in both liberty and dignity. It is not a twilight right but the heart and soul of the Constitution," he said.
Questioning counsel's attempt to link privacy to liberty, the bench said, "Every element of liberty is not privacy. Like the right to dissent is part of liberty but it is not right to privacy. If we declare the right to privacy as a fundamental right, will it permit the government to enact a law prohibiting social media from making personal details of its users public? So, what will be the obligations of a state in such a situation?"
Questioning senior advocate Shyam Divan the bench asked whether privacy right could be absolute and the government could put some restriction or not? To it, he said he said that the aspect of privacy might be determined on a case-to-case basis.
"In a technologically dynamic society it is imperative to keep dimensions of the right to privacy flexible to adapt and adjust with the new scenarios," he said, adding many of the fundamental rights "cannot be enjoyed to the fullest in the absence of the right to privacy".
In past orders, the Supreme Court has expanded the right to life to include the right to clean air and even sleep.
If it does rule that privacy is a fundamental right, then all cases relating to the Aadhaar scheme will go back to the original three-judge bench or five-judge bench.