Observer Desk

Posted on 05.09.17 by

Interview with Sr. Adv. Kapil Sibal (Part II) – on Privacy Judgment

In the Privacy case, Mr. Sibal appeared for the States of Karnataka, West Bengal, Puducherry, Punjab and argued for the recognition of privacy as a fundamental right. In this interview with Supreme Court Observer, he speaks about these judgements, while also explaining the implications in larger societal context.

 6) An unanimous nine judge bench recognised the fundamental right to privacy. What could be the possible legal implications on Aadhar regime?

Mr. Sibal – That’s yet to be looked at. First, we need to wait for the outcome of the Justice B.N. Srikrishna Committee which has been set up and then see what legislation is initiated by the govt in context of data protection. This much is clear that the government needs to place a data protection law. The other thing is when it comes to welfare legislation is the view the court will take in context of privacy. Also, Aadhar is not being limited to only social welfare legislations and is being applied to various other aspects of an individual’s activities. The telecom operator wants Aadhar data, so does the Income Tax department. Now, even private players want Aadhar numbers. Does it violate privacy? If it does not, then what kind of data protection should there be? What kind of punitive measures will be taken in event that the data is violated? Data protection is ultimately between the individual and the entity. Can the State seek that data from the private entity and if it seeks data, then there is no data protection. So, that itself is a case of violation of privacy. So all those issues –during income tax raid, telephone tapping, will have to be looked afresh. If privacy is a fundamental right and something is discovered, then can it be used as evidence? These are very complex issues that will arise for courts to determine in times to come.

7)How is privacy different from other fundamental rights. What makes its status so contested?

Mr. Sibal – Because, it’s a natural right. It’s inalienable. It’s sourced in our birth. Even a child is entitled to privacy in the sense that a child can’t be paraded naked in the house. A child has a right to not have his body exposed. Privacy is something we are born with. Its part of the dignity of the individual. And J. Chemaleshwar has put it very effectively that “ silence of the constitution does not mean that the right does not exist.” So the right is inalienable. Even Justice Chandrachud remarked that privacy has been held to be an intrinsic element of the right to life and personal liberty under Art 21. So, it is embedded in the Right to Life even if it is not expressed in so many terms. Life includes privacy and privacy in that sense is the undercurrent or the golden thread that runs through all rights of part III of the Constitution.

8) Do you think, in hindsight it was a tactical mistake in the way Aadhar arguments were handled by Attorney General’s office where, first Mr. Mukul Rohatgi argued that there was no fundamental right to privacy and even if there was, it could be waived off in lieu of social benefits. And then, Mr. K.K. Vengugopal took the the line that privacy has an elitist construct.

Mr. Sibal – By and large, the government made the big mistake by not conceding when the tide of time was against them. Even when I appeared for my client in AIMPLB , I advised them that this form of triple talaq would not be recognised as valid by any court, much before I started arguing the case. Similarly, the now Attorney General, this government and the previous Attorney General made a mistake in taking the line that there is no fundamental right to privacy. So like they are not allowed to forget that they attacked us during the Emergency, similarly they will be reminded of the fact that they opposed the individual’s right to privacy, which is far more serious.

9) What does this privacy case mean beyond the Aadhar regime? Specifically, how will it affect the private Internet Companies and Intermediaries like Facebook and Whatsapp which gather a lot of user data? This is also a challenge pending before the Supreme Court?

Mr. Sibal – Once the data protection laws come then all companies have to work within that law subject to challenge. The present Information Technology law presently is inept at protecting data. The questions like means of protecting data, the parameters required and the quality of protection needed have to be answered. What kind of disclosures can be made and under what circumstances, what kind of commitments must be given by companies, the non-state actors who have that data, all those aspects have not been dealt within the legislation and need to be looked into after this judgment. Also this judgement makes it easier for the LGBT community as sexual orientation has also come under the right to privacy.

Read our summary of Mr.Kapil Sibal’s arguments – http://scobserver.clpr.org.in/aadhar-right-privacy-9-judge-bench-day-3-arguments-kapil-sibal/

Read our summary of the Right to Privacy Judgement in Plain English –

The Right to Privacy : The 9 Judge Verdict in Plain English (Part I)

The Right to Privacy : The 9 Judge Verdict in Plain English (Part II)

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