Legally India: New Delhi: Wednesday, August 02, 2017.
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 (day 1, day 2, day 3, day 4). 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 the Maneka 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.