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Right to Privacy Part of Basic Structure, Cannot Be Tinkered With: Petitioners Tell SC

During the hearings, one judge had observed that the ‘right to privacy’ is not absolute and it can’t stop the legislature from imposing reasonable restrictions.

The Supreme Court of India. Credit: Reuters

The Supreme Court of India. Credit: Reuters

New Delhi: On the second day of arguments on the ‘right to privacy’, petitioners reiterated in the Supreme Court that “the right to privacy is part of the basic structure of the Constitution and it cannot be tinkered with by the state under the pretext of collecting data and monitoring it”.

A nine-judge bench, comprising Chief Justice J.S. Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Nariman, A.M. Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer, is hearing arguments on a batch of petitions questioning the violation of privacy in the guise of collecting information under Aadhaar.

On July 18, a five-judge Constitution bench had referred the issue to a nine-judge bench to revisit the 1962 judgment by a six-judge bench, which had held that the right to privacy is not a fundamental right. This bench had relied on the verdict given by an eight-judge bench which ruled the same in 1954.

On Wednesday, the court had observed that the ‘right to privacy’ is not absolute and it can’t stop the legislature from imposing reasonable restrictions.

Even as senior counsel Arvind P. Datar was making his submission, Justice Chandrachud said, “The right to privacy can’t be defined by the court as its contours are amorphous. He asked the counsel, “Can this court define privacy? You can’t make a catalogue of what constitutes privacy. Privacy is so amorphous and includes everything from liberty, dignity, religion to free movement.”

Justice Chandrachud told the counsel, “If we make any attempt to catalogue privacy, it will have disastrous consequences. Privacy is a sub-sect of liberty and not necessarily co-exists with data protection. Every fundamental right can be subject to reasonable restrictions under Article 19 (2) of the Constitution and the state is entitled to regulate the right”.

Citing examples, Justice Chandrachud said, “The right to make a decision will not come under privacy. If I decide to co-habit with my wife, the police can’t barge into my bedroom. That’s my privacy. Whether I send my children to school or not, is not a matter of privacy”.

Senior counsel Gopal Subramanium argued, “Privacy is a broader concept and data sharing is only one aspect of privacy. Privacy is about the freedom of thought, conscience and individual autonomy and none of the fundamental rights can be exercised without assuming a certain sense of privacy”. He argued that the state is under an affirmative obligation to protect the fundamental rights. He said, “Liberty existed prior to constitutional era and the law had merely recognised its existence. Liberty is fundamental to democracy and citizens cannot exist without privacy”.

Former Attorney General Soli Sorabjee also said, “Privacy is not explicitly laid out in the Constitution. But that does not mean the right to privacy does not exist”. He argued that “the freedom of the press has been derived from Article 19 and similarly, the right to privacy can be derived broadly from Article 21”.

Shyam Divan argued that “the right to privacy itself couldn’t be defined with any specificity. However, it extends to several aspects including bodily integrity, personal autonomy, right to be left alone, informational self determination, protection from state surveillance, dignity, confidentiality and freedom of movement”.

Divan brought to the notice of the court the speech made by finance minister Arun Jaitely in the parliament during the discussion of the Aadhar Bill in March 2016. Mr. Jaitley had said, “It is now accepted that privacy is a part of individual liberty. So when Article 21 of the Constitution (right to life and liberty) says that no person shall be deprived of his right of life and liberty without procedure established by law, then let us assume that privacy is a part of liberty.” He said even the Centre had recognised that right to privacy is a fundamental right which cannot be taken away by sharing information under Aadhar.

The court observed today, “When 99% of the citizens are ‘unconcerned’ about sharing personal data with private players like Apple, how is it qualitatively different if the state has the same information?”

Posing this question, Justice Chandrachud told the counsel, “Most citizens are unconcerned about where or how their personal data is used. You say there are 35 crore internet users and 18 crore telephone users, but 99% of people are not concerned. When you operate your iPad with your thumbprint, your data is public and there it is.”

He also observed, “The moment you want to travel from Mumbai to Delhi, you will get 100 suggestions. Your private and personal data is in private hands, so is there anything qualitatively different when the state has it? You have surrendered your personal life to private parties, but here we are saying that state should be restricted from having it.”

Justice Chandrachud told senior counsel Sajan Poovayya that right to privacy is not dependent upon the majority willing to surrender or forego this right. He said that numbers alone are not a good test to examine the worth of a right such as privacy where constitutional issues were involved. The counsel said, ” It is the state’s obligation under the Constitution to protect one’s dignity and privacy. The right to privacy does not stand on the pedestal of secrecy; it holds forth from the pedestal of dignity”.

Poovayya submitted, “Apple even has watches monitoring my heartbeat. My informed surrender of data to a private player in this digital age is not my surrender of my personal data to all. If this private player takes my data and gives it to all on the internet, then I can sue him for breach of contract. But if I give it to the state, where are the corresponding restrictions and deterrents? No reasonable expectation of privacy is ill-suited in a digital age.”

Senior advocate Anand Grover argued that the right to privacy must be given a flexible meaning. He referred to the Protection of Human Rights Act, 1993, specifically Section 2(f) to suggest that international human rights law had been read into the Indian law. Locating dignity within Article 21, he said privacy must be cultivated from dignity.

He highlighted the hyphenation of “privacy-dignity claims”, quoting from the 1975 order in Govind vs State of MP: “There can be no doubt that privacy-dignity claims deserve to be examined with care.” He said the state was duty-bound to protect, by enacting a law as needed.

To a question on whether the violation of right to privacy occurs during the collection of data or its misuse, he reiterated that the limited purpose of collecting that data must be recognized by law, adding that, without informed consent, even collection would be a violation.

Senior advocate Meenakshi Arora concluded that even the majority judgment in Kharak Singh had been interpreted by later decisions of the Supreme Court as having incorporated a right to privacy, such as in R. Rajagopal v. State of Tamil Nadu as well as PUCL v. Union of India. Arora added that the right to privacy can be drawn from Articles 17, 24, and 25 of the Constitution, not just Articles 14, 19, and 21.

Arora took the court through an evolution of the right to privacy and compared a world without privacy to an existence under one unending general warrant. She examined the German Constitution, which evolved through the country’s experiences to further secure the privacy rights of German citizens. She concluded her arguments for the privacy of personal information and personal choice. Petitioners have concluded arguments and Attorney General will begin his arguments on July 25.