SC reserves verdict on whether privacy is fundamental right

Intervening during the arguments by senior counsel Rakesh Dwivedi, who appeared for the Gujarat government, Justice Chandachud said: “We are a knowledge-based society and privacy cannot be raised to a level where we stifle innovation. Innovation in India is happening in services… data.” He said that for understanding individual privacy, it would be helpful to envisage three zones — intimate, private and public. In the intimate zone, which encompasses family, personal relationships etc, state interference will be minimal, he said. The second was the private zone where an individual shares personal data with others, like on the social media or for using a service. “The data so submitted must be used only for the purpose for which it is given,” Justice Chandrachud said, adding that privacy levels would be minimal in the public zone. Justice Nariman added: “When a person goes from zone one to zone three, the privacy right remains. When it is balanced against state interests, that state interest will have to satisfy the tests of that zone.”

Justice Nariman added: “When a person goes from zone one to zone three, the privacy right remains. When it is balanced against state interests, that state interest will have to satisfy the tests of that zone.”

Dwivedi said his point was that everything depended on circumstances and hence it would be sufficient if tested on a case-by-case basis instead of making it a fundamental right. Dwivedi said the discussions on privacy will also have to take note of large corporations outside India “which are more powerful that the Indian state” and controlling the information flow. “How does one control Google which has servers outside India?” he asked.

Justice Chandrachud answered: “Yes, you are right that privacy as a practical notion has broken down to a large extent. But let us not use that argument to defeat privacy as a Constitutional notion.” Senior counsel Gopal Sankaranarayanan, who appeared for the think tank Centre for Civil Society, raised the point about apps. “When we use an app, it asks us whether it can access the contact list, pictures etc and we invariably say yes. Thus, we are waiving our privacy. But if we raise privacy to the status of a fundamental right, it cannot be waived. If waived, it would make that contract void,” Sankaranarayanan said.

Appearing for the Telecom Regulatory Authority of India and the state of Haryana, advocate Arghya Sengupta, who is also the Founder of Vidhi Centre for Legal Policy, said privacy was “defined as the right to be left alone. If so, conceptually it is nothing but liberty itself.” What aspects of it needed to be protected could be decided on a case-by-case basis, he said.