“Regressive To Deny Right To Privacy In 2017 By Relying On A 63-Year Old Decision”: Arvind Datar And Meenakshi Arora Back The Right [Read Written Submissions]

Before the mammoth nine-Judge Constitution Bench set up for the purpose, Senior Advocates Mr. Arvind Datar and Ms. Meenakshi Arora strongly argued in favor of the declaration of the ‘right to privacy’ as a Fundamental Right.

Mr. Datar’s arguments were confined to the impact of the U.S. Constitution and the decisions of the U.S. Supreme Court in deciding of the following two questions-

1. Can a combined reading of the observations in P. Sharma v. Satish Chandra 1954 SCR 1077 and in Kharak Singh v. State of U.P. AIR 1963 SC 1295 lead to the conclusion that no fundamental right to privacy exists in our Constitution?


2. Whether the observations in P. Sharma and in Kharak Singh (majority view) on the right to privacy require to be overruled?

With regard to the M.P. Sharma case, Mr. Datar submitted that the case was confined to the question of violation of Article 20(3) and 19(1)(f) by search warrants issued pursuant to an Inspection Report under Section 138 of the Indian Companies Act, 1913, for searches to be carried out at 34 places simultaneously. He, therefore, contended that the question of the right to privacy being a Fundamental Right never came up for consideration before the Court.

“The Kharak Singh decision was rendered in December, 1962 and before the important changes that took place in the United States.  The M.P. Sharma and Kharak Singh cases related to search/seizure and surveillance respectively and had nothing to do with the ambit and scope of the constitutional right of privacy,” Mr. Datar further submitted.

He, thereafter, pointed out that the U.S. Constitution has recognized the right of privacy as a Fundamental Right, and that it would be “regressive to hold, in 2017, that there is no fundamental right to privacy based on one sentence occurring in a decision rendered 63 years ago”.

Backing the Right, Ms. Meenakshi Arora traced its history through the years, submitting that it is “an amorphous and a protean concept that emerges from values and principles that have evolved from case law over hundreds of years.”

The Right to privacy, or the right to be left alone, she contended, includes components such as the privacy of one’s home and residence, privacy of personal belongings and free from arbitrary searches and seizures, privacy of personal choice, and privacy of personal data.

“Each of these liberties forms an important core or at the very least a penumbra of fundamental rights guarantees in Part III of the Constitution, whether considered historically or even in terms of jurisprudence,” she, thereby, submitted.

With regard to the decision in M.P. Sharma’s case, Mr. Arora submitted that these were in the nature of “stray observations”, and therefore, needs to be clarified as obiter by the Court. “The stray observations in the judgment in MP Sharma about the lack of a right of privacy were inaccurate as being somewhat overbroad in 1954 and are clearly erroneous today. As such, this Hon’ble Court may clarify the same and limit the ratio of the judgments to the facts of that case,” she submitted in this regard.

Besides, she contended that the observations in Kharak Singh that limit right to privacy have been contended to be untenable in view of the judgments in RC Cooper v. Union of India, (1970) 1 SCC 248, and Maneka Gandhi v. Union of India, AIR 1978 SC 597. She further submitted that the majority in Kharak Singh fails to correctly interpret the word “freely” under Article 19(1) (c) and errs in exclusively confining it to physical restraints.

Ms. Arora, therefore, asserted that the line of judgments from Gobind v. State of MP, (1975) 2 SCC 148, R. Rajagopal v. State of TN, (1994) 6 SCC 632, PUCL v. Union of India, (1997) 1 SCC 301, Sharada v. Dharampal, AIR 2003 SC 3450; District Collector v. Canara Bank, (2005) 1 SCC 496; Selvi v. State of Karnataka, (2010) 7 SCC 263 etc. are not per incuriam but instead “correctly lay down the law and need to be re-affirmed”.