Mr. Grover pointed out that the decisions in Kharak Singh vs. State of U.P. (1962) and Govind vs. State of Maharashtra (1975) gave tentative findings on a privacy right. The decisions of the United States offered a narrow and restricted understanding of the privacy right and the court must refer to the right as conceptualised under the European Court of Human Rights, Latin American jurisprudence and the Canadian charter in particular, where privacy had been read into liberty and security. Further, privacy was equally applicable to the poor as it was to the rich and the State could not waive a poor man’s civil liberties in the process of granting economic rights. The right to food was not a higher right than liberty or privacy.
The issue was not limited to privacy but an individual’s control over his own thoughts. Technology might enable the State to map the thoughts and feelings of an individual, and the absence of a privacy right would leave the individual with no legal recourse. The argument of the State that privacy was too vague or fluid could not be reason enough to deny it the constitutional protection offered to the fluid notion of personal liberty.
The dissenting opinion of Justice H.R. Khanna in ADM Jabalpur vs. SS Shukla (1976) recorded that Article 21 was not a gift of the Constitution but an inherent, pre-existing aspect of the same. Fundamental rights had no fixed content and evolved judicially as was the case with the Right to Life under Article 21. Various facets had been read into Article 21 and privacy could be one of them. However, privacy itself was multi-faceted and could not be compartmentalised into Articles 14, 19 or 21. The State could not barter privacy rights for welfare measures.
The private life of an individual included personal and technological developments that required protection of an individual’s right to informational privacy for self-determination. The State acknowledged a privacy right but had a semantic problem with calling it the ‘Right to Privacy’.
Mr. Datar referred to Justice Chandrachud’s ‘set theory’ and proposed that if privacy was a sub-set of liberty and liberty was a fundamental right, then privacy would also be a fundamental right, for the sub-set too must be granted constitutional protection. To say that privacy was too vague and amorphous would be erroneous and the accurate description would be that it was elastic and incapable of a precise definition, much like other rights of life and liberty under the constitution. Limiting privacy to statutory protection would endanger the right as it could easily be taken away. The Constituent Assembly Debates had excluded a privacy right in the context of the 4th Amendment. However the courts could fill in the skeleton of rights had been done under the basic structure doctrine.
The hearing on Aadhar and the Right to Privacy concluded on 02.08.2017. The case has been reserved for judgment.
(Mr. Anand Grover appeared for the Petitioners in Writ Petition (Civil) No. 833/2013, Aruna Roy and Another vs. Union of India and Ors. which has been tagged with this matter.)
(Mr. P.V Surendranath appeared for the state of Kerala)
(Ms. Meenakshi Arora appeared for the Petitioners in (Transfer Case (Civil) No. 152 of 2013), Vickram Crishna and Others vs. UIDAI and Ors. which has been tagged with this matter.)
(Mr. Sajjan Poovayya appeared for the Applicant in IA No. 5/2014 in W.P.(C) 833/2013 Aruna Roy & Anr. Vs. Union of India & Ors. which has been tagged with this matter.)
(Mr. Arvind Datar appeared for the Petitioners in Transfer Case No. 151/2013, S. Raju v. State of Tamil Nadu, which has been tagged with this matter.)
(This post relies on contributions from Ms. Nidhi Khanna)