Mr. Tushar Mehta, the Additional Solicitor General representing the Unique Identification Authority of India, followed Mr Sundaram on August 1st, 2017. He argued that the right to privacy was not a Fundamental Right and that Kharak Singh was good law.
Mr. Mehta began with the observation that academic opinion was largely unanimous on the right to privacy being far too subjective to be defined. He suggested that the Court could be satisfied that the privacy right was protected under the common law and statutes without raising it to the level of a constitutional fundamental right. Justice Bobde wondered how privacy could be protected if legislatures used statutes to deny privacy rights. Mr. Mehta responded that privacy was a common law right and protected under Article 14. Justice Bobde persisted by asking if Article 14 protected privacy as it could be invoked only for violations of constitutional rights not common law rights. Mr. Mehta responded that if state actions violated common law rights, they could be set aside for arbitrariness under Article 14. He submitted that several countries – Australia, Israel, Japan, Taiwan, Mexico and South Korea – had statutory protection of privacy, and not constitutional protection. Moreover, the United States may not be the best constitutional comparison for India as their constitution provided far more expansive rights. For example, freedom of speech permitted the disclosure of a rape victim’s identity.
Justice Chelameshwar asked if any privacy right would survive if statutory privacy rights were repealed by the Parliament. Mr. Mehta replied that the active curtailment of privacy rights would inevitably be tested for the violation of some fundamental right. Justice Chandrachud then posed the question on whether it would be a fundamental right violation if privacy was insufficiently protected due to inaction of the state. Inadequate protection would not offend Article 14 and the courts would not direct greater protection of a right.
The hearing then moved on to discussing when a right could be elevated to a fundamental right. When asked this question by Justice Bobde, Mr Mehta responded that this would be decided by the legislature. Justice Nariman pointed out that fundamental rights were essential guarantees that could not be contingent on Parliament’s will. Justice Chandrachud explained that even if a statute permitted a woman drug peddler to be strip searched, this could not be done on a public road as her constitutional rights would limit that statute. Mr Mehta stated that the statute itself would provide for effective protection but on Justice Chandrachud querying what would happen if the statute did not have such protection, Mr Mehta conceded that, as per Vishakha, the Court would step in until the legislature took action.
Mr Mehta then referred to US v Jones and US v Miller which held that 4th Amendment protection did not extend to those who voluntarily surrendered their information to third parties that then conveyed this data to the state. He then started extolling the virtues of Aadhar when Justice Nariman directed him to skip this part of his argument as the court had noted that the statute sufficiently provides for a Right to Privacy. He clarified that the court might uphold a fundamental right to privacy and yet decide that the Aadhar scheme did not violate it. He then enquired how long a court should wait for a legislature to act before it used Vishakha powers to create new law to which Mr Mehta responded that as a suitable law existed there was no need for the court to step in.
Mr. Tushar Mehta, Additional Solicitor General is appearing for the state of Madhya Pradesh in (Transfer Petition(Civil) No. 921of 2015), Union of India and Anr. vs. V. Viswanadham, which has been tagged with this matter.)
(This post relies on contributions from Ms. Nidhi Khanna)