There are many aspects to privacy and not all merit elevation to a fundamental fight, Attorney General KK Venugopal told the Supreme Court on Wednesday. The AG was appearing for the Centre before the nine-judge bench sitting to decide if privacy should be considered a fundamental right under the Constitution.

While the right to privacy may be considered a species of right included within the right to liberty, each element of the right to privacy had to be considered separately by the court, argued the AG, and urged the court not to declare an omnibus right as fundamental.

Venugopal argued that a fundamental right to privacy had been deliberately left out of the domain of the right to life under Article 21. “Privacy, as a fundamental right, could have been mentioned in 21, but has been omitted. This was deliberate,” said Venugopal.

He also said the provision to deprive the right was inherent even in Article 21, and this was why the court could sentence persons to the death penalty for certain crimes.

Arguing that Aadhaar was necessary to protect the right to life of the country’s poor, the AG said that the privacy rights of a few could not override the rights of many others in a developing country like India. "Don't apply US judgement to privacy. India has people below poverty line and the middle class...So that needs to be considered," the AG said.

However, judges on the bench cautioned that privacy could not be seen only as an elite right. Pointing out that even questions like forced sterilisation of poor women would come under the question of privacy, the judges said, “Don't forget the right to privacy of the little man.”

Earlier in the day, senior advocate Kapil Sibal, appearing on behalf of the governments of West Bengal, Karnataka, Punjab and Puducherry, argued that privacy had to be considered a fundamental right, though it cannot be an absolute right. "Privacy cannot be an absolute right. But it is a Fundamental Right. This court needs to strike a balance," Sibal said.

In hearings last week, a number of senior advocates, including Gopal Subramanium, Arvind Datar, Soli Sorabjee, Shyam Divan, Anand Grover, Meenakshi Arora and Sajan Poovayya had argued that privacy was an integral component of liberty and dignity, and was a necessary element of a range of fundamental freedoms secured by the Constitution. They argued for an expansive definition of privacy without it being limited to any one article of Part III of the Constitution.

The decision of the nine-judge bench will have a strong impact on a batch of petitions being heard by a five-judge Constitutional bench of the SC against the Aadhaar project being pushed on a massive scale by the central government. These petitions have raised the objection that the privacy rights of citizens are violated when biometric identification through Aadhaar is made mandatory.