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Scope and contours of a right to privacy debated in Supreme Court

LiveMint logoLiveMint 19-07-2017 Priyanka Mittal

New Delhi: At the first hearing on the constitutionality of the so-called right of privacy on Wednesday, the Supreme Court debated the scope and contours of the right, if it were to be held fundamental.

A nine-judge constitution bench headed by chief justice J.S. Khehar was set up the day before by a five-judge bench to decide on the question of whether the right to privacy constituted a fundamental right.

The limited question cropped up in the context of legal challenges to the Aadhaar unique identity number that has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions. A total of 22 cases challenging various aspects of Aadhaar were being heard by the court.

Gopal Subramanian, arguing in favour of privacy, began by placing it alongside the concepts of liberty and dignity—both of which are inherent in the Preamble and the Constitution.

He urged the court to view privacy not as a shade of a fundamental right but as one that was “inalienable and quintessential to the construction of the Constitution”.

Subramanian argued that the concept of privacy was embedded in the right to liberty/dignity and that everything done in the exercise of freedom could be attributed to privacy.

“As of today, liberty and dignity are not in the twilight zone, they are the heart and soul of the Constitution. They are pre-existing natural law rights. Can liberty be exercised without privacy,” he posed before the court.

He went on to explain how the prevailing fundamental rights guaranteed under articles 14 (equality before law), 19 (right to freedom) and 21 (right to life and personal liberty) of the Constitution could only be exercised through liberty and freedom of choice.

Shyam Divan, counsel for one of the petitioners, continued the argument by defining privacy to include bodily integrity, personal autonomy, protection from state surveillance, freedom of dissent/movement/thought.

“The body belongs to the state in a totalitarian regime. The pervasive notion that the body belongs to the state is in violation of bodily integrity. One cannot be compelled to part with personal information,” he said.

To this, justice D.Y. Chandrachud said that the right to privacy would not necessarily overlap with data protection and could not be seen as an absolute right (without any restrictions/limitation). He added that the concepts of liberty and privacy did intersect but it was not necessary that everything under liberty could be extended to privacy.

Divan agreed and said that the right to privacy could be made conditional and tested on a case-to-case basis.

The importance of elevating the right to privacy to the status of a fundamental right was stressed upon by senior counsel and constitution law expert, Arvind Datar, who said that such a move would accord it greater protection.

The court also discussed the relevance of the two precedents through which privacy law developed in the 1950s and 1960s.

The first, a case dating back to 1954, relates to the search and seizure of documents by the police. A majority ruling in the case held that the right to privacy was not a fundamental right under the Constitution and that the police action amounted to “temporary interference for which statutory recognition was unnecessary”.

In the second case, which involved state surveillance, the court ruled in 1962 that “privacy was not a guaranteed constitutional right”. It, however, held that Article 21 (right to life) was the repository of residuary personal rights and recognized the common law right to privacy.

All arguing counsel sought for the two cases to be overruled in the light of fresh precedents and developments.

Once the privacy question is settled by the nine-judge constitution bench, the remaining issues related to Aadhaar will be heard by a smaller bench

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