Mr. Sundaram commenced arguments on 1st August 2017, day 5 of the 9 Judge Aadhaar Bench hearings, by contending that the Constituent Assembly Debates show that the framers of the Constitution clearly concluded that privacy need not be a fundamental right and that it was sufficient if it had statutory protection. Hence, as the intent of the framers is unambiguous, declaring privacy a fundamental right would be an amendment not an interpretation of the Constitution.
Justice Chandrachud disagreed with this interpretation of the debates and pointed out that the Constituent Assembly had limited deliberations on privacy in an individual’s home and not the wider concept being considered here. Moreover, the distinction between statutory and constitutional rights resulted in different degrees of protection, as statutory rights may be taken away but constitutional civil and political liberties cannot be made subservient to economic interests.
Mr. Sundaram clarified that the constitution already granted a right to personal liberty, and various facets of privacy had been read into the liberty right. Merely because there are overlaps between privacy and personal liberty, it does not mean that privacy must be granted constitutional protection. He proposed that the data protection aspects of privacy could be protected under the constitutional right to property under Article 300A. Justice Chelameshwar pointed out that data protection was only one facet of privacy and did not exhaust the scope of the right.
Mr. Sundaram continued by distinguishing between personal liberty under the Constitution and civil liberties in general, as the former was limited to physical liberty and was an inalienable right. Justice Nariman responded that this distinction narrowed the scope of personal liberty in the constitution and was contrary to the Bank Nationalisation Case and went beyond the majority opinion in Kharak Singh vs. State of U.P. (1962). Mr. Sundaram persisted that personal liberty protection was limited to the physical domain.
Justice Nariman suggested that the Constituent Assembly Debates should not to be read narrowly and even if the privacy right was not anticipated by the framers, the Courts could recognize such a right to comply with India’s international obligations under the Universal Declaration of Human Rights and the International Convention on Civil and Political Rights. Mr. Sundaram disagreed citing the House of Lords in England which has held that international conventions need not be read into domestic law. Violations of privacy that arise from technological advancements are best regulated by statute and not by reading privacy into Article 21. The Article 51 mandate to respect international obligations could be met by offering statutory protection to privacy and there was no need to expand the scope of Part III of the Constitution. He concluded his arguments by reiterating that the correct approach is for the Court to read data protection into the scope of ‘property’ in Article 300A.
Mr. C.A. Sundaram appeared for the State of Maharashtra in W.P. (C) No. 494/2012 Justice K.S. Puttaswamy vs. Union of India.
This post relies on contributions from Ms. Nidhi Khanna