Is Right to Privacy a Fundamental Right? SC to Decide Today

9-judge Constitution Bench of the Supreme Court reserves verdict on whether right to privacy is a fundamental right.

(This article was first published on 2 August 2017, upon the conclusion of the Supreme Court’s hearings on whether Indians citizens have a fundamental right to privacy. As the decision of the nine-judge bench is expected today, before CJI Khehar retires, The Quint is reposting this article from its archives to help explain what was argued in the case and what we can expect in the judgment.)

The hearings before the Supreme Court on whether Indian citizens have a fundamental right to privacy concluded on Wednesday (2 August 2017) after final submissions were made by lawyers from both sides. The special Constitution Bench, headed by the Chief Justice of India, reserved its judgment for an undeclared period of time.

The mandatory linkage of Aadhaar details to a number of public and private services, as well as tax returns, has prompted multiple challenges on the basis that this violates Indian citizens’ fundamental right to privacy. The decision of the Constitution Bench, therefore, will play a crucial role in determining the fate of the Aadhaar programme.

As the central government has denied that privacy is protected under the Constitution, courts have stayed many of these challenges, pending a conclusive determination by the Supreme Court on the existence and nature of right to privacy in India. The matter was referred for such determination in August 2015, but was only heard over the last two weeks despite being tagged as urgent.

Also Read: Right to Privacy: SC to Make History, But Maybe Not In a Good Way

The Supreme Court conducted six days of hearings before a nine-judge bench. During this time, petitioners that include members of civil society and four state governments argued that privacy is a fundamental right. The respondents, which include the central government, several other state governments, UIDAI, TRAI and the Centre for Civil Society, argued to the contrary.

After arguing for over three days, the assorted counsels for the respondents wrapped up their arguments today. The state governments of Gujarat and Haryana were represented today, as was TRAI and the Centre for Civil Society.

Govt. Arguments Against Fundamental Right to Privacy

The arguments raised by the respondents were essentially variations on the arguments raised by Attorney-General KK Venugopal when he started their arguments, with constant references to Aadhaar and how privacy will affect this (despite repeated instructions from the court to refrain from this).

However, Arghya Sengupta, appearing for the state of Haryana and TRAI, as well as Gopal Sankaranarayanan for the Centre for Civil Society, made some more nuanced arguments today that were singled out for appreciation from the bench.

Sankaranarayan actually attempted to refute the arguments of the petitioners, arguing that the MP Sharma and Kharak Singh cases (which held that there is no fundamental right to privacy) had actually been correctly decided.

He also argued strongly against the petitioners’ contentions about fundamental rights being interconnected, demonstrating that the freedoms under Article 19 only applied to citizens of India, and so showing that some rights were to be kept separate under the Constitution.

In terms of the consequences of making privacy a fundamental right, instead of scaremongering how Aadhaar would be scuppered because people would argue it violated privacy, he focussed on the fact that fundamental rights couldn’t be waived.

This meant that even people who were ok with accepting the diminishing of privacy as required for an effective public welfare programme as well as convenient private services such as Whatsapp, would not be able to do so.

Sankaranarayanan also argued that the aspects of privacy that could be protected under the Constitution had already been dealt with in specific cases under the right to life and personal liberty (Article 21).

This, along with the protection of privacy in legislation such as the Aadhaar Act as well as new legislations like the DNA Profiling Bill, showed that there was no broader threat to privacy that required a separate right.

Sengupta, Founder and Research Director at the Vidhi Centre for Legal Policy (which helped draft the Aadhaar Act) expanded on this point further, arguing that all the relevant concerns with regard to privacy fell within the right to liberty, and not a separate right to privacy.

He extensively quoted legal philosophers as well as cases from the USA to back up this point, and submitted that it meant that the court could only deal with concerns about liberty on a case-by-case basis.

“Fundamental Rights are Empty Vessels That get Enriched Over Time”

The petitioners were supposed to get two hours to rebut the arguments by the respondents, but because the latter’s arguments went on for so long, this time was halved.

The strong line-up of lawyers arguing in favour of right to privacy expressed their disappointment that the government had decided to argue against this.

Also Read: Our previous live blog with the arguments of the petitioners.

The highlights of their counters against the government are as follows:

• Privacy is implicit in multiple fundamental rights, not just the right to liberty. It is important to dignity, which is a separate facet of life and liberty, as well as a precondition for freedoms like freedom of speech under Article 19. Fundamental rights are inalienable and therefore cannot be compartmentalised as the government thinks.
  
• The fact that privacy is difficult to define is irrelevant, since even liberty is amorphous. As a result, this cannot be a ground to say that it cannot be a fundamental right, since all fundamental rights evolve over time.
  
• The State’s argument that welfare programmes will suffer because of the right to privacy does not stand since the State cannot force a bargain for food or welfare in exchange for privacy – the most vulnerable such as the poor also need privacy, and there is no need for this to conflict with development.
  
• Lastly, if privacy is not a fundamental right, this means it can be taken away by statute, which the Constituent Assembly would not have envisaged – they did not include an explicit right to privacy because they already considered it to exist within other provisions.

What Happens Next?

The Supreme Court’s decision needs to be awaited now. Justice Nariman had promised as comprehensive a judgment as possible, and with detailed written arguments having been submitted, we cannot expect anything for at least a couple of weeks, if not much more time.

The comments made by the judges (especially Justices Khehar, Chelameshwar and Nariman) and their lines of questioning during the hearings give rise to a reasonable expectation that the court will find privacy to be a fundamental right. However, things are not quite so simple – there has also been sufficient recognition by the judges that privacy is not an unqualified right.

We can therefore expect them to also pronounce a number of limitations on the right. Given the extensive submissions by the government on Aadhaar, there is a suspicion that these permissible restrictions will be broad enough to ensure Aadhaar is protected.

At any rate, the government is likely to argue that Aadhaar is an acceptable restriction against privacy, and fight it out in the courts for a long enough period of time that it becomes a fait accompli.

Also Watch: FB Live: Karuna Nundy on Why We Need the Right to Privacy

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