A nine-judge Constitution Bench of the Supreme Court, which began hearing arguments Wednesday to determine whether right to privacy is a fundamental right under the Constitution, said it was trying to understand whether it should define the contours of the right but added that there were limitations. At one point, Justice D Y Chandrachud, one of the judges on the bench headed by Chief Justice of India J S Khehar, remarked that “privacy is not so absolute or overarching to prevent the state from legislating”.
Others on the bench include Justices J Chelameswar, S K Kaul, S A Bobde, R F Nariman, A M Sapre, R K Agarwal and S Abdul Nazeer.
Justice Chandrachud sought to know if the right to privacy would extend to one’s choice of family and sexual orientation.
“If privacy is right to make choice, choice in what area — family, sexual orientation, gender identity, surveillance… what all?” he asked the petitioners. He indicated that if privacy does extend to these as well, then the implications of the Supreme Court upholding the right will be significant because “if yes, Naz Foundation falls”.
The Naz Foundation case pertains to the challenge to Section 377 of the Indian Penal Code which criminalises homosexuality. The Delhi High Court in July 2009 had read down the section and upheld consensual sex between adults in same sex relations. However, the Supreme Court overturned this in December 2013, saying only Parliament had the power to change law.
Justice Chandrachud said the court was trying to understand whether it should define the contours of the right. “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.
Appearing for the petitioners, senior counsel Gopal Subramanium said privacy was embedded in all processes of human life. Underlining that privacy was a basic facet of liberty, he said, “Liberty is pre-existing law. All that the Constitution did is to enumerate it. 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”. Privacy, he said, was not something that needs to be carved out as every human action is a part of his/her privacy.
Justice Chandrachud wondered if it can be said that “privacy rights are not only vertical (not only against state action) but also horizontal (against society) and imposes an obligation on the state to make laws to protect one’s existence in society?”
“Yes,” answered Subramanium, adding “that is the affirmative action to be adopted by the state”.
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”.
On Tuesday, while referring to two earlier judgements — by an eight-judge bench in the M P Sharma case in 1954 and by a six-judge bench in the Kharak Singh case in 1962 — it was pointed out that the apex court had ruled in these matters that there was no right to privacy in the Constitution. The nine-judge bench was set up to examine the correctness of these rulings.
The question of privacy had come up during the hearing of petitions challenging the Constitutional validity of the Aadhaar scheme.
Justice Chandrachud also said that the “right of privacy is not necessarily with coexistent with data protection”. This was why even Europe, he said, had to bring in two separate conventions, one dealing with privacy and another with data protection.
“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,” he said.