Right To Privacy Needs To Be Viewed In Light Of Technological Advances: Senior Advocate Kapil Sibal [Read Written Submission]

Addressing the mammoth nine-Judge Constitution Bench set up for the purpose, Senior Advocate Kapil Sabil has submitted that the Right to Privacy is a “quintessential right flowing out of the bouquet of rights under enshrined under Article 21.”

Mr. Sibal admitted that the Supreme Court decisions in the cases of M.P. Sharma v. Satish Chandra, 1954 SCR 1077 and Kharak Singh v. State of U.P., (1964) 1 SCR 332 would not be relevant in the light of the “present societal context where advances in technology and communication have transformed the relationship between stakeholders inter se and in particular the relationship between the State and its citizens.”

He further pointed out that the observations in M.P. Sharma were made in the context of Article 20(3) and the power of search and seizure, and not in the context of Article 21 of the Constitution of India.

He then asserted that the status of right to privacy as a Fundamental Right has been settled by a catena of judgments, and that after declaration of the judgment in A.K. Gopalan as being bad in law, the decisions in M.P. Sharma and Kharak Singh would, by necessary implication, not be good in law as these were premised on A.K. Gopalan.

Mr. Sibal, thereafter, submitted that the Court should “in the context of changed circumstances address the issue of privacy afresh and ought not to consider the issue of privacy from the prism of an era where issues confronting contemporary society did not exist”.

He further opined that in light of the technological advances, the concept of privacy needs to be viewed in light of two qualitative relationships: one between the citizen and the State; the other between citizens and non-state actors. He submitted that though the Right to Privacy is a Fundamental Right, it is not absolute, and that the State’s infringement of such right should meet the following tests:

“a. The action must be sanctioned by law;

1. The proposed action must be necessary in a democratic society for a legitimate aim;


2. The extent of such interference must be proportionate to the need for such interference;


3. There must be procedural guarantees against abuse of such interference.”

The State, he said, may require access to personal information for public good, and that in such a scenario the citizen may be obligated to give access to such information “for enhancing citizens’ entitlements, access to services, prevention or detection of crime, national security, investigation and prosecution of criminal offences”

Further, the Right to Privacy, he said, also enjoins the State to put in place a robust data protection law that obligates non-state actors to ensure that data shared by citizens is secure and that the breach of any confidentiality would attract legal consequences.