SC Nine-Judges Bench Concludes Hearing On Right To Privacy With Petitioners Responding To Its Critics

The Supreme Court’s nine-Judge bench is likely to clear the air as to whether there is a fundamental right to privacy, before the Chief Justice of India, Justice J.S.Khehar retires on 28^th of this month.  The bench concluded its proceedings today, after hearing the counsel for six long days, beginning from July 19.

On the side of petitioners, the bench heard senior counsel, Gopal Subramanium, Soli J.Sorabjee, Shyam Divan, Arvind Datar, Anand Grover, Sajan Poovayya, Meenakshi Arora, Kapil Sibal (for Karnataka) and J.S.Attri (for Himachal Pradesh).

On the side of respondents, it heard the  Attorney General, K.K.Venugopal,  C.A.Sundaram, Additional Solicitor General, Tushar Mehta, Rakesh  Dwivedi (for Gujarat), Gopal Sankarnarayanan, (Centre for Civil Society) and Arghya Sengupta (Haryana and TRAI)

Today, being the last day, the petitioners’ counsel got about an hour to sum up their rejoinders to the contentions of the respondents.   Gopal Subramanium, Kapil Sibal, Shyam Divan, Anand Grover, Meenakshi Arora, Sajjan Poovayya and Arvind Datar got about 10 minutes each to make their submissions.  P.V.Surender Nath, senior counsel for the State of Kerala also made his submissions for about five minutes, in defence of the petitioners’ arguments.

Today’s Salient Points

Rakesh  Dwivedi:  Privacy is a relative concept. It depends on the context and circumstance.  It fluctuates in nature. Since it is abstract, we have to see whether Article 21 applies in a particular case.

Justice D.Y.Chandrachud:  You don’t surrender the right, when you enter the public zone, but retain it.

R.D.: It is not possible.

Justice D.Y.C: It is modulated.

CJI:  If we say privacy is a fundamental right, then we must say what all facets of privacy will come under it.

RD: In most intimate zones, the right exists, and Article 21 will apply there.  But the moment you move out of it, it will get diluted.

Information about HIV patients, for example, is very sensitive.  It can be shared for a limited purpose, if it does not cause any harm.  Information about malaria, dengue, for example, must be collated.  If the information is not likely to cause harm, or injury, then there is no privacy involved.  Information about the number of AIDS-affected patients, for example.  This is required to know whether the country is prepared to face the problem.

Preamble to the Constitution does not help to defend the right to privacy.  Liberty of thought and expression is in a very narrow domain.  The crux of the Preamble is different, it is socio-economic justice.   Fraternity includes me, all of us.

Privacy is claimed only by those who have done something wrong, and therefore, need to hide.

Justice J.Chelameswar:  (Disagreeing) The question is whether it can be shared.

Justice D.Y.C:  Can the Supreme Court, for example, share the data obtained from an applicant for proximity card, to access the Courts, with others?

RD:  Google has more access to information and control, than the Indian State.

In commission of crime, it is the nature of information, whether it is likely to cause harm or injury, that is important.

Gopal Sankaranarayanan:  If privacy is held as a fundamental right, then it could not be waived, whereas in most instances of individuals being asked to give consent to share data, it is waived.

Arghya Sengupta: I have no right not to be seen in a public park, whereas within my home, I have a right not to be spied on.  Right to be left alone, conceptually, is nothing but liberty itself.

Justice Rohinton Fali Nariman intervenes to record the bench’s appreciation of both Gopal Sankaranarayanan and Arghya Sengupta, for their excellent submissions.

Gopal Subramanium: During emergency, citizens were deprived of both the right to liberty and privacy.

Kapil Sibal: Privacy is at the heart of diversity and is a golden thread of liberty.

Shyam Divan: Privacy is not just about information sharing, but about bodily integrity and about surveillance. It is at the core of personal freedom, and must be constitutionally protected, because statutory law is insufficient for the purpose.

Meenakshi Arora:  Privacy is an empty vessel into which each generation pours its wisdom.  State cannot say, “I will give you welfare if you sacrifice privacy”, as it targets the most vulnerable.

Arvind Datar: If the  Court does not declare privacy as a fundamental right, Constitutional protections, previously established, will be in danger.

P.V.Surendranath:  The respondents’ claims that privacy is an amorphous and a fluid concept are insufficient to deny privacy.