A historic nine-judge Constitution Bench of the Supreme Court of India has been hearing arguments for and against the right to privacy in the matter of K.S Puttaswamy v. Union of India for four days. On the first two days of the hearing (July 19 and July 20), the petitioners presented their arguments in favour of a right to privacy in India. On the third day (July 25) Senior Advocate Kapil Sibal took a pro-privacy stance on behalf of the State Governments of Karnataka, West Bengal, Punjab and Puducherry. A brief submission was made by the Counsel for the State of Himachal Pradesh, while the Attorney General of India (K. K. Venugopal), on behalf of the Government of India initiated arguments against the right to privacy being a fundamental right. On day four (July 26), the Attorney General continued his arguments and Senior Advocate C.A. Sundaram began his submission for the State of Maharashtra.

Today, Senior Advocate C.A. Sundaram continued his submissions before the Court, followed by submissions from Additional Solicitor General Tushar Mehta on behalf of the State of Madhya Pradesh and Unique Identity Authority of India (UIDAI), and Senior Counsel Rakesh Dwivedi for the State of Gujarat.

Mr. Sundaram stated that the framers of our Constitution had expressly left out the right to privacy from the ambit of fundamental rights, and only the Parliament had the power to introduce it through a constitutional amendment, if they deem it necessary to have such a right. Privacy can only be protected by way of statutes and legislation, he said, and cannot be elevated to the level of fundamental right. Also, it was pointed out by him that privacy can be protected under other rights like right to property, freedom from intrusion, etc. J. Chandrachud disagreed with this interpretation, stating that many aspects of privacy are manifestations of liberty, and that Mr. Sundaram’s interpretation of the Constituent Assembly debates is narrow. He pointed out that the Constituent Assembly only discussed the aspects of secrecy of correspondence and privacy in one’s own home. They did not discuss the wider question of right to privacy.

Mr. Sundaram was of the view that data should be protected under Article 300A (right to property) of the Constitution. He mentioned that various aspects of privacy are already covered under Article 21, and there is no need to give it specific recognition. Mr. Sundaram gave the example of freedom of press not being a separate fundamental right, as it was already covered under freedom of expression. He maintained that the intention of the framers of the Constitution is satisfied by the existence of sufficient statutory protection of privacy. Further, he contended that people may choose subsidised food over protecting their private information, to which J. Chandrachud vehemently disagreed.

According to Senior Advocate C.A. Sundaram, personal liberty is different from civil liberty. He emphasized that personal liberty deals with only physical aspects of the person such as protecting their life and physical body, and does not include protection of mind. Other aspects, he argued, are covered under other fundamental rights. Justice Nariman asked Mr. Sunadaram about the judgement in the case of RC Cooper in which it was said that Fundamental Rights have to be read together, to which Mr. Sundaram replied that fundamental rights can stand alone and do not necessarily have to be read together. J. Nariman, shocked at this pre-1970s proposition, asked how such an argument could even be made today. He stated that even if we assume that privacy is not in our Constitution, it still has to be read in the fundamental rights because India is a signatory to the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). Mr. Sundaram disagreed, saying that in England, the House of Lords had repeatedly insisted that international conventions do not necessarily have to be read into domestic law. He accepted that with advancements in technology, intrusions into privacy may arise, but the solution for that is to devise suitable regulatory methods, instead of redefining Article 21.

Furthermore, Mr. Sundaram mentioned that the majority judgement in the case of Kharak Singh talked about three points: (1) pigeon hole theory; (2) privacy per se is not a fundamental right; and (3) ordered liberty is a part of personal liberty. He stated that theManeka Gandhi judgement overruled only the first aspect, while the other two aspects still stand. He reiterated that data protection can be traced to Article 300A and that it doesn’t fall under Part III of the Constitution. On being asked by J. Chelameswar about how data can come under the ambit of ‘property’, he said that if data is commercially valuable, it can be included under property by way of a wide interpretation of the term ‘property’.

Lastly, J. Chandrachud pointed out that Article 51, contained in the Directive Principles of State Policy, states that international conventions have to be respected. Mr. Sundaram argued that this has to be done statutorily; there is no need to include it in Part III of the Constitution. J. Nariman stated that the NALSA judgement specifically said that treaties have to be read into municipal law.

Next, Mr. Tushar Mehta began his submissions on behalf of State of Madhya Pradesh and UIDAI. He started his arguments by citing the case of Kharak Singh. He argued that privacy is vague and subjective and that something so ambiguous cannot be made a fundamental right. He contended that one person’s concept of privacy can be diametrically opposite someone else’s notion of privacy. Mr. Mehta accepted that privacy is a valuable right and therefore it has already been recognized by the Parliament through various statutes. He pointed out that the legislature, in its wisdom has enacted several subject specific legislations to protect various aspects of privacy.

J. Bobde opined that the problem arises when legislature denies protection of privacy. Mr. Mehta gave the example of Right to Information Act, 2000 and stated that even though transparency is essential, the legislature understands the importance of protecting privacy. Pointing out that the term “unwarranted” is vague in the RTI Act, J. Nariman asked how it can be challenged if there is no right to privacy? Mr. Mehta said that it can be protected as a common law right. At this point, J. Bobde interjected and said that state actions can only be challenged for infringement of fundamental rights, not a common law right. J. Nariman asked: “If dignity is violated, where will you ground it? It is not expressly stated as a right.” To this, Mr. Mehta cited a list of Indian statutes that protect individual privacy.

Further, on Aadhaar, J. Chandrachud asked what the remedy is for citizens if Aadhaar gets repealed. Mr. Mehta, in response, wanted to read out some provisions to show that the Aadhaar Act’s protection of privacy is exemplary. He also gave an example of the Information Technology Act, stating that it protects informational privacy. Mr. Mehta stated that various jurisdictions like New Zealand, Australia, Israel, Japan, Brazil, Saudi Arabia, China, etc. have individual statutory rights for protection of privacy. To this, J. Nariman quipped “It was shown to us that Pakistan has a fundamental right to privacy.” Making the point that our cultural ethos is different from other countries, Mr. Mehta mentioned that in America, the right to divulge the name of a rape victim is a fundamental right under freedom of speech and expression. On being asked by J. Bobde whether all of the countries mentioned by Mr. Mehta had fundamental rights under their Constitution, the latter replied that most of them do. He emphasized that it is up to the State to decide if it wants to guarantee constitutional or statutory right to privacy, but it has to be subject specific. J. Bobde also asked: “What are the factors that elevate a right to the level of fundamental right?” Mr. Mehta answered that the right has to come under the ambit of one of the stated fundamental rights. J. Nariman interjected at this point and highlighted that fundamental rights need to be interpreted according to changing needs of the time and that the Constitution cannot be interpreted literally. J. Chandrachud added by saying that privacy is at the heart of liberty in a modern state.

Further, Mr. Mehta quoted paragraphs from the judgments of Malone v. Metropolitan Police Commissioner and United States v. Graham. He gave the example of Electronic Communications Act in the United States that protects privacy of data, in support of his argument that privacy should be guaranteed nothing more than statutory protection. Further, it was contended that the even the apex court of Singapore and many other countries have not imposed the status of fundamental right on privacy. Mr. Mehta also revealed to the bench that the Government has constituted a committee headed by former Justice B.N Krishna to evolve principles related to data protection and the Ministry of Electronics and Information Technology is in the process of drafting a data protection bill. Mr. Mehta reiterated that vague concepts cannot be given the status of fundamental right and cited AK Roy v. Union of India and Shreya Singhal v. Union of India to support his viewpoint. He contended that there are dangers in expanding the scope of Part III of the Constitution, and public interest and good governance will be seriously harmed if privacy is made a fundamental right, without defining its boundaries. Mr. Mehta defended Aadhaar by stating that its repeal will cause irreparable damage. He also argued that the Supreme Court had endorsed biometric identification in the case of PUCL v. Union of India. Lastly, Mr. Mehta requested the court to not rely on American judgments while deciding the issue as the notion of privacy in America is different than what it is in India.

Counsel for Gujarat, Senior Advocate Rakesh Dwivedi began his arguments by submitting that every aspect of privacy has to be tested separately to decide if it can be elevated to the level of fundamental right. Mr. Dwivedi was of the view that life and personal liberty is enhanced when information is made public. The context is important when the question of breach of privacy arises, he stated. Justice Chandrachud pointed out that the right to privacy should be balanced with spread of knowledge and propagation of innovation. Further, Mr. Dwivedi mentioned that, even though privacy as a whole cannot be a fundamental right, but if the court thinks that certain aspects of it satisfies the reasonable expectations of society, then those aspects can be read into Article 21. At this point, Justice Chandrachud asked Mr. Mehta how much autonomy should an individual have or only the nature of privacy claim should be looked into. To this, Mr. Mehta replied saying that right to choice does not need the cloak of privacy. Decisional autonomy is already covered under Article 21 of the Constitution. Lastly, Justice Chandrachud and Justice Nariman discussed the right of limited use of data and emphasized that the usage of data should be limited to the purpose for which it is collected.

With this, arguments for the day concluded. The State will wrap up its arguments tomorrow, and the petitioners will wrap up theirs post lunch.