Do Indians have a fundamental right to privacy? It will be known Thursday when a nine-judge Constitution Bench of the Supreme Court answers this question on a reference from a five-judge bench. The nine-judge bench, headed by Chief Justice of India J S Khehar and comprising Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer, had reserved its verdict on the matter on August 2 after extensive arguments over six days.
The right to privacy question was referred to the nine-judge bench after a clutch of petitions challenging the Aadhaar Act came up before the five-judge bench. These petitions claimed that the Aadhaar Act violated people’s right to privacy.
But the existing position of law, as settled by an eight-judge Supreme Court bench in 1954 (in the M P Sharma case) and subsequently by a six-judge bench in 1962 (in the Kharak Singh case), was that there was no fundamental right to privacy in the Constitution. The five-judge bench concluded that the correctness of these rulings would have to be examined first before it could take a call on the petitions challenging Aadhaar. The question was referred to the nine judges.
The contentions of the parties and queries from judges during the hearing have provided a glimpse of what a yes-verdict could mean for the country, especially in the background of technological advances and its encroachment into the lives of people.
Senior counsel Gopal Subramanium, who argued for declaring privacy a fundamental right, propounded the stand that “liberty is a pre-existing law” and “all that the Constitution did is to enumerate it”. He said “privacy was embedded in the expressions liberty and dignity as appearing in the Preamble to the Constitution. Liberty is inalienable… all choices are a part of the exercise of liberty… humans cannot exist without liberty… liberty is heart and soul of the Constitution”.
Senior counsel Soli Sorabjee, also representing the petitioners, said “non-mentioning of privacy rights explicitly in the fundamental rights does not signify it does not exist. It can be deduced from other fundamental rights mentioned in Part III of the Constitution. Freedom of press too was not mentioned but deduced so”.
The Centre, however, took the position that privacy could be a fundamental right, but a “wholly qualified” one, implying that it would be subject to reasonable restrictions like other fundamental rights. Attorney General K K Venugopal said “since the right to privacy consists of diverse aspects and is a sub-species of the right to liberty, every aspect of sub-species will not qualify as a fundamental right”. He sought to stress that privacy as a right could not be seen in isolation and was, in fact, a “conglomerate of rights” which had to be treated on case-to-case basis.
Though the question of Aadhaar was not being debated during this hearing, the Unique Identification Authority of India (UIDAI), the nodal agency for implementing Aadhaar and a party in the matter, sought to reassure the court that “privacy and confidentiality were non-negotiable under the Aadhaar Act”. It was also pointed out to the court during the hearing that the Constituent Assembly had considered whether privacy should be a fundamental right at the time of drafting the Constitution and decided against it.
Justice Chandrachud wondered whether privacy, if recognised as a fundamental right, would be available only against state action or extend to actions by private individuals too. The challenge before the court, if it decides to rule in favour of privacy rights, will be to balance it vis-a-vis the basket of statutory and Constitutional rights available to citizens and to ensure that stress on privacy doesn’t stifle the quest for innovation.
Justice Chandrachud expressed this in as many words: “If privacy is right to make choice, choice in what area — family, sexual orientation, gender identity, surveillance. What all?… For instance, my right to cohabit with my wife is right to privacy but my right to send my children to school isn’t. There is some element of autonomy in the exercise of liberty which does not lie in the realm of liberty. It need not necessarily be the case that everything that falls within liberty also falls within privacy,” he said.
That the verdict will be one of immense significance was evident when he observed that it could even upset the judgment in the Naz Foundation case which pertained to the challenge to Section 377 of the IPC. In July 2009, the Delhi High Court had read down the section and upheld consensual sex between adults in same-sex relations. But the Supreme Court overturned this in December 2013, saying only Parliament had the power to change law.
Highlighting the need to strike a balance between individual rights with the requirements of the state in the IT era, the court said “…whether we like it or not, we live in a world of big data and the state is entitled to regulate privacy. Privacy is not so absolute or overarching to prevent the state from legislating.”
During the hearing, the government informed the court that it had set up a committee under Justice (retired) B N Srikrishna to “identify key data protection issues in India and recommend measures of addressing them”.