A nine-judge Constitution Bench of the Supreme Court (SC), comprising Chief Justice of India (CJI) J.S. Khehar and Justices D.Y. Chandrachud, J. Chelameshwar, S.A. Bobde, A. Nazeer, R.K. Agrawal, R.F. Nariman, A.M. Sapre, and S.K. Kaul, heard arguments today on whether Indian citizens enjoy a fundamental right to privacy. This question, among others, was referred to a Constitution Bench by an SC order in August 2015, while hearing a batch of petitions led by Justice K.S. Puttaswamy and Ors. v. Union of India and Ors [W.P.(C). No. 494/2012] that challenged various aspects of the Aadhaar scheme. A Constitution Bench of five-judges was subsequently formed by the CJI on July 12 for the purpose, and in its first hearing held on July 18, the five-judge Bench referred the narrow issue of right to privacy to a larger nine-judge Bench. The nine-judge Bench is now tasked with answering the specific question of whether two previous SC judgments [M.P. Sharma v. Satish Chandra (AIR 1954 SC 300), eight-judge Bench; Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295), six-judge Bench] that held that the Constitution of India does not envisage a fundamental right to privacy holds true today.

Today’s arguments began with Senior Advocate Gopal Subramanium submitting on behalf of the petitioners that the SC’s decision in M.P. Sharma, was based on the contemporary view that fundamental rights must be seen as being separate and distinct from one another and that Article 21 of the Constitution (Right to Life and Personal Liberty, in which right to privacy is said to inhere) is merely a residual right. He pointed out that M.P. Sharma was concerned primarily with whether the Criminal Procedure Code’s provisions on search and seizure violated the right against self-incrimination, in which context the SC observed that the Indian Constitution does not contain any provisions like the American Fourth Amendment, and therefore does not guarantee a fundamental right to privacy. In the Kharak Singh decision that dealt with surveillance by the state, while the majority of judges held that the Constitution does not provide for a right to privacy, Justice Subba Rao wrote in dissent that Article 21 is not a residual right but a full-fledged one, and said that privacy is a facet of liberty. Mr. Subramanium submitted that liberty and privacy are pre-existing natural rights rather than rights that have been conferred by the state, and that if liberty is a fundamental value of our Constitution, then privacy is inherent in that value. That said, privacy is not a penumbral right that exists in the shadow of other rights, rather it is the essence of liberty.

Mr. Subramanium then drew attention to the words “liberty” and “dignity” as they appear in the Preamble to the Constitution and said they are intended to convey an inherent right recognized by the Constitution. Privacy, he said, is embedded in both these words – a fact that was reflected in both Govind v. State of MP (AIR 1975 SC 1378) and the dissenting opinion in Kharak Singh. Other words that appear in the Preamble, namely “democratic” and “republic”, also invoke the idea of liberty, as does its guarantee of freedom of thought, which cannot be invoked without liberty and privacy. Speaking on the conjunction of Articles 14 (Right to Equality), 19 (Right to Freedom) and 21 of the Constitution, Mr. Subramanium argued that these rights can only exist under limited government, and that after the SC’s decision in Maneka Gandhi v. Union of India (AIR 1978 SC 597), they must be read together. The right to equal protection under law guaranteed by Article 14 also protects liberty, and the exercise of freedoms guaranteed by Article 19 involves the exercise of liberty and by extension, privacy. In other words, everything done in the exercise of liberty requires privacy.

Justice Chandrachud interjected at this point by asking about the contradiction that arises when individuals place their information in the public while at the same time claiming privacy. Justice Nazeer also supplemented the question by asking about the boundaries of privacy – whether it translates to a right to be left alone. Mr. Subramanium responded by stating that protection of one’s personal space does not only mean protection of physical space. He explained that privacy has four aspects i.e. spatial, decisional, informational, and the right to develop one’s personality. In all these aspects, Mr. Subramanium said privacy is important. Justice Chandrachud then interjected again, asking if the state is under an obligation to legislate to protect privacy, seeing how Article 14 is a direct injunction against the state and Article 19 has a horizontal element, which Mr. Subramanium answered in the affirmative. He submitted that the combined reading of the SC’s decisions in Maneka Gandhi and Govind, along with Articles 14, 19 and 21, makes it clear that there exists a fundamental right to privacy, though the contours of this right will have to be dealt with separately. He concluded his arguments by reading out portions of relevant precedents from both India and the United States that support the existence of a fundamental right to privacy.

Senior Advocate Soli Sorabjee then argued briefly on behalf of the petitioners, reiterating that privacy is an inalienable right that inheres in the very personality of human beings. He also said that the absence of an express right to privacy from the Constitution does not mean that such a right does not exist. He pointed to how the courts have deduced the existence of a right to freedom of press from right to free speech guaranteed under Article 19(1)(a), and said that it is possible to deduce unenumerated rights from enumerated ones.

Mr. Shyam Divan commenced his arguments for the petitioners after Mr. Sorabjee. He pointed out that there has been an unbroken line of judgments in India since 1975 that have recognized the right to privacy under part III of the Constitution, and said that now is the time to affirm rather than regress the existence of that right which has been enjoyed by the Indians for four decades. He continued that right to privacy itself cannot be defined with any specificity and would develop on case by case basis, but it certainly included bodily integrity, personal autonomy, right to be left alone, informational self-determination, dignity, confidentiality, compelled speech, freedom of thought, among others.

In the context of Aadhaar and bodily integrity, Mr Divan said that a body belongs to a state in a totalitarian regime. If a person is compelled by State to give his biometrics for any purpose, it would be an invasion of his privacy and bodily integrity. Expanding upon informational self-determination, as an aspect of privacy, Divan argued, that a person must have control over how much information he wants to put out there. He should not be compelled to give the information, but should have the element of choice else it violates the right to privacy. Citing the nine-judge bench in I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), he said that the Constitution is a living document. He argued that privacy emanates from a conjoined reading of the golden triangle of Articles 14, 19 and 21. He further relied upon India’s international obligations to cover privacy as a right under part III.

Mr Divan then referred to several judgments that affirmed the right to privacy over time. He reiterated that the majority decision in Kharak Singh was overruled by Maneka Gandhi, as it was based on the doctrine propounded in A.K. Gopalan v. State of Madras (AIR 1957 SC 27), and the minority view was accepted as correct. He further stated that the judgment in M.P. Sharma was clearly distinguishable, referring to several other cases.

Taking his arguments further, he said that right to privacy is an internationally recognized human right and referred to international instruments including the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). He further made a mention of the report by special rapporteur appointed by United Nations Human Rights Council for privacy. Justice Chandrachud, making his observations on this aspect, said that as per the European Court of Human Rights, right to privacy is not necessarily co-extensive with right to data protection. He observed that data protection is a matter of statutory protection while privacy is a matter of constitutional protection. He further explained that not every aspect can be covered by privacy, with some falling under the ambit of data protection. Hence, privacy can not be regarded as an absolute right.

Mr Divan further argued that it was pertinent to recognize right to privacy under Part III of the Constitution so that the citizens have a remedy to approach the court in case of infringement. On being asked by the bench if he wanted to place right to privacy under Part III only for remedial purposes, Divan clarified that under Part III, degree of protection is much higher and thus, it casts a positive obligation on the State to ensure that the right is not violated. Concluding his arguments, Mr Divan stated that the mark of a civilization is how it treats personal privacy of individuals – if right to privacy is not recognized under Part III, then a large number of rights will be denuded of their vigor and essence.

Senior Counsel Arvind Datar began his submissions by placing two questions before the bench: first, what is the ratio decidendi of M.P. Sharma and Kharak Singh, and second, were they constitutionally correct? He asserted that the questions in M.P. Sharma and Kharak Singh were confined to self incrimination under Article 20(3) and freedom of movement under Article 19(1)(d), respectively. Both the judgments contained one stray comment on privacy, and the question of whether there is a fundamental right to privacy never came up for consideration. Mr. Datar read out passages from the M.P. Sharmajudgment and discussed the statements made on the Fourth and Fifth Amendments of the American Bill of Rights. Further, he gave the example of the American case Olmstead vs. United States that held that wiretapping was not a violation of the Fourth and Fifth Amendments, but was subsequently overruled by Katz vs. United States. The dissenting judgment of Justice Louis Brandeis in Olmstead vs. United States that mentioned “right to be let alone” was particularly important and gained significance with respect to the right to privacy. The landmark cases of Griswold vs. Connecticut and Roe vs. Wade were also mentioned by Mr. Datar in light of the reading of right to privacy in the Ninth and Fourteenth Amendment.

Further, Mr. Datar explained the judgment in Kharak Singh and how the majority opinion was to strike down Section 236 (b) of the UP Police Regulations that allowed “domiciliary visits” to the petitioner’s house. He emphasized that it is paradoxical that in the 21stcentury and in the largest democracy in the world, the right to life and personal liberty under Article 21 includes forty other rights but not the right to privacy. At this point, Justice Chandrachud interjected to point out that the cases of R. Rajagopal vs. State of Tamil Nadu (AIR 1995 SC 264) and Mr. X vs. Hospital Z (1998 Supp. (1) SCR 723) talked about privacy with respect to private entities, but fundamental rights are not applied horizontally. He also remarked that privacy can be deemed an amorphous concept under Article 21 without exhaustively defining its contours. Its boundaries have to be developed on a case to case basis. Justice Chandrachud also mentioned that every element of liberty does not include privacy. Liberty and privacy intersect but privacy is a smaller subset of liberty. CJI J. S Khehar concurred with Justice Chandrachud. Lastly, Justice Nariman put forth the question: if privacy is grounded in Articles 14, 19 and 21, what are the parameters of challenging the right? Mr. Gopal Subramanium answered saying it will be challenged with respect to the restrictions provided under each of these rights. Justice Nariman mentioned that the case of R.C Cooper held that Fundamental Rights are not watertight compartments and can overlap with each other, but it did not say anything with respect to challenging these rights. He later agreed that the challenge has to be looked at on a case to case basis.

The hearing will continue tomorrow.