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Posted on 23.08.17 by

The Right to Privacy: Key Issues Before the 9 Judge Bench

The 9 Judge Bench of the Supreme Court that heard arguments on whether the right to privacy is a fundamental and inviolable right under the Constitution of India, 1950 will be pronouncing the judgment in the case on 24.08.2017. The Bench included Chief Justice Khehar and Justices Jasti ChelameshwarS.A. BobdeDY ChandrachudAbdul NazeerNarimanR.K. AgarwalAbhay Manohar Sapre, and Sanjay Kishan Kaul and saw active participation from a few Judges, Justices Nariman, Chandrachud and Chelameshwar in particular.

Several issues were raised on the question of granting constitutional protection to a privacy right, with arguments from both sides spanning 6 days. Of these, there are some significant aspects on which the decision, which is to be pronounced tomorrow, is likely to shed some light.

Firstly, on the question where in the Constitution does the privacy right lie? Does it emerge from an expansive reading of Article 21 or flow from Article 19, or is it to be found in a harmonious reading of the Golden Triangle of the aforesaid Articles along with Article 14. Arguments on behalf of the petitioners have focused on a conjoint reading of Articles 14,19,& 21 to the extent of contending that privacy may also be a facet of other Articles like 17 and 25 and must therefore be located  in Part III and not a specific Article therein. A key observation by the Bench in this context has been that of Justice Nariman who has stated that a constitutional privacy right, if granted, must have its foundation in Article 21 with cross fertilisation from other Articles.

Secondly, the petitioners’ arguments witnessed questions from the Bench with regard to the defining the contours of privacy and the skepticism surrounding the idea of an absolute right to privacy, as the petitioners contended that delimiting the right would curtail further development of the law. Judges on the Bench, CJI Khehar and Justice Chandrachud in particular did not shy away from repeatedly voicing concern over an absolute right to privacy, the latter going to the extent of noting the questions that would then be raised on prior decisions of the Court, specifically the Naz Foundation Case Tomorrow’s judgment becomes all the more significant in this context for what remains to be seen is to what extent, if at all, the Court will recognise a right to privacy  and the repercussions of the same for the LGBTQ community in India.

Further, will the court recognise a privacy right that encompasses spatial, decisional and informational privacy or merely the right of every individual to be left alone which the State contended has already been recognised.  If there is a fundamental right to privacy inherent in the constitution, will it be regulated on the threshold of reasonable restrictions akin to Article 19 or will a privacy right be subjected to a higher standard of compelling state interest? The  limits on extent of regulation on the privacy of an individual when elevated to the status of a fundamental right, therefore, will be an important outcome of tomorrow’s decision.

Thirdly, a key concern which was voiced by several members of the Bench is that of the horizontal application of a privacy right and the extent to which the State would be required to regulate relations between individuals. Justice Kaul and Justice Chandrachud have sought clarification on whether a horizontal privacy right if violated, would only attract civil remedies. Would the State not be under an obligation to regulate non-State actors to secure the fundamental right to privacy of an individual under Article 21? The decision of the Bench would be significant in terms of determining the role of the State in protecting the privacy of an individual against both State and non-State actors.

Justice Nariman, at the conclusion of the hearing had stated that the Bench would consider all aspects and deliver a comprehensive judgment for the conceptual clarity of the nation of the question of a privacy right. The decision tomorrow would be determinant of the relationship between the State and an individual vis-à-vis privacy.

To read an depth record of the arguments and submissions see:



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