Mr Arvind Datar began the second day of arguments before the 9 Judge Bench hearing the right to privacy case by responding to questions raised by the Bench on the scope of the right to privacy with additional written submissions. He reiterated that ‘the fundamental right to privacy is not contained in any one article, but has facets that are located within Articles 14, 19, and 21, and possibly, in addition, within other articles such as (but not limited to) 25 and 30.’ Further, he suggested that a right to privacy may reside in Article 20(3).
Justice Kaul asked if the right to privacy would apply horizontally between private persons, and if such an application would curtail other rights? Mr. Datar responded that the right to privacy may be categorized as physical, informational or decisional. Physical privacy protects against tangible and intangible intrusions into private space; Informational privacy is offended by industrial control over personal information; and decisional privacy protects autonomy of fundamental personal choices. Such a right to privacy is not a penumbral or derivative right but at the centre of Part III of the Constitution. When a private person violates the privacy right one could seek civil remedies of damages, injunctions or specific relief. When State actors violate the privacy right one may seek writ remedies under Articles 32 or 226 of the Constitution.
Justice Chandrachud enquired if the horizontal application of the privacy right would only attract civil remedies. Would the State not be under an obligation to regulate non-State actors to secure the fundamental right to privacy of an individual under Article 21 and ensure that their data is protected? Hence, the State must must step in even where there is a violation of the privacy right by non-State actors even where private law may regulate data protection. Mr. Datar agreed and submitted that the State has already put in place Information Technology Rules to regulate private exchange of information. He argued that not all horizontal rights may be protected by the State as such protection would depend on the public interest. Justice Kaul expressed concern that only civil remedies should be available for enforcing the privacy right among private actors. Justice Chelameshwar pointed out that the immediate question before the bench was if there is a constitutional right to privacy and the Bench could avoid deciding the issue of horizontal application.
Mr. Datar concluded by praying that the Bench declare the right to privacy to be a fundamental right granted under Part III of the Constitution. He emphasized paragraphs 12 and 19 of Mr. Gopal Subramanium’s written submissions quoting Gobind v. State of Madhya Pradesh (1975) on the scope of the privacy right to include spatial privacy, informational privacy, decisional autonomy, and full development of personality.
(Mr. Arvind Datar, Sr. Advocate is appearing for the Petitioners in Transfer Case No. 151/2013, S. Raju v. State of Tamil Nadu, which has been tagged with this matter.)