Mr. Soli Sorabjee and Mr. Shyam Divan, followed Mr. Gopal Subramanium on Day 1 of the 9 Judge Bench hearing on whether the right to privacy is a fundamental right under the Constitution of India, 1950.
Mr. Soli Sorabjee sought the Court’s permission to submit a written note. He submitted that privacy is inalienable and crucial for the development of personality. He argued that the Constitution not expressly laying down a right to privacy does not mean that such a right does not or cannot exist.
Mr. Shyam Diwan began his arguments by noting that this is an occasion for the Court to affirm our belief that we have a Fundamental Right to privacy, as enjoyed for four decades through an unbroken line of decisions since 1975.
Mr. Divan argued that privacy right emanates from the golden triangle of rights formed by Articles 14, 19 & 21. It includes bodily integrity, personal autonomy, the right to be let alone, and protection from state surveillance. He argued that the submission of fingerprints and iris scans directly invades bodily integrity and is a sign of a totalitarian State, and mandating the linking of Aadhar to Bank accounts violates personal autonomy. Based on the 9 Judge Bench judgment in IR Coelho v. State of Tamil Nadu (2007) which affirmed that the Constitution is a living document, and Supreme Courts Advocate on Record Association v. Union of India (1993) which emphasised the dynamic nature of law, he insisted that a technologically dynamic society demands that the right to privacy adapt to new scenarios.
Interestingly, Mr. Diwan noted that while debating the AADHAAR Bill, the Rajya Sabha assumed that privacy is a fundamental right. He referred to 30 judgements of the Supreme Court on the scope of the right to privacy. Govind v. State of Madhya Pradesh (1975), R. Rajagopal v. State of Tamil Nadu (1994) and PUCL v. Union of India (1996) held Article 21 to include the right to privacy. Justice Chelameshwar asked if the right to privacy can be located anywhere apart from the fundamental rights, to which Mr. Divan replied that the Preamble would be another source.
In his written submissions, Mr. Divan enumerated 40 judgments that lay down different facets of the right to privacy. Ram Jethmalani v UOI (2011) held privacy to be a cherished constitutional value. Justice Hidayatullah in Satwant Singh Sawhney v D. Ramanatham (1967) supported the minority view in Kharak Singh, the 11 Judge-bench in RC Cooper (Banks Nationalisation) v. UOI (1970) expressly overruled Kharak Singh and held that Fundamental Rights contained in different articles are not mutually exclusive, and this interpretation was adopted in Mohd. Arif v. Supreme Court of India (2014).
Mr. Divan argued that M.P. Sharma vs. Satish Chandra (1954) is distinguishable, as the case dealt with seizure of evidence violating Article 20(3). Mr. Divan clarified that he is not asking the right to privacy to be included in Article 20(3), but that the Court hold the right to privacy as a part of Articles 19 and 21. When he referred to the judgment in Selvi v. State of Karnataka (2010), Justice Nariman enquired how it dealt with MP Sharma. Mr. Divan replied that the Court in Selvi recognised the importance of personal autonomy, and held that interference with personal autonomy violates privacy.
Mr. Divan then enumerated international instruments, such as the UDHR (which India voted in favour of in 1948), the ICCPR (ratified in 1979), the UN GA Resolution appointing the Sp. Rapporteur on the right to privacy as being relevant to privacy in the digital age. At this point, the Chief Justice noted that privacy rights are protected by international human rights law. Mr. Diwan contended that the right is recognized, by statute or constitutionally, all over the World and moreover, Article 51 mandates the State to foster respect for international law and treaty obligations.
Justice Chandrachud expressed concern about absolute privacy rights that can prevent the State from legislating. Mr. Divan clarified that privacy rights could be conditional, but the conditions must be decided on a case to case basis. He insisted that the scope of the right not be left to common law, but be a made a fundamental right so as to enable a citizen to approach a Constitutional court. Moreover, it would also prevent the State from violating an individual’s privacy rights.
Mr. Divan referred to the Harvard Law Review article by Warren and Brandeis on the evolution of privacy. He endorsed Gary Marx’s argument for a limitation on State power, especially in the age of new technology and data gathering. He concluded by quoting Justices Chelameshwar and Bobde from the order dated 11th August, 2015: If there is no Fundamental Right to privacy, then a large number of our rights will be “denuded of vigour and vitality”. Thus, the Right to privacy must be read into Articles 14, 19 and 21.
(Mr. Soli Sorabjee, Sr. Advocate is appearing for the Petitioners in W. P. (Civil) No. 372 of 2017, Shankar Prasad Dangi v. Bharat Cooking Coal Ltd., which has been tagged with this matter.)
(Mr. Shyam Divan, Sr. Advocate is appearing for the Petitioners in W. P. (Civil) No. 829 of 2013, S. G. Vombatkere vs. Union of India, which has been tagged with this matter.)
This post relies on contributions from Ms. Nidhi Khanna.