What is your #RightToPrivacy? These SC lawyers will fill you in…

For judges, advocates, journalists, students and even a new born child (with or without an Aadhaar card), yesterday and the coming few days are going to be historic. The nine-judge bench of the Supreme Court heard the first set of arguments on whether the right to privacy was a fundamental right guaranteed by the Constitution of India. It is a case that would determine whether or not we as Indians, ever had the right to privacy as we had been told in the past.

What is your privacy? Is it simply the safety of your personal data? Is it protecting one’s bank details? What about protecting ones own dignity and liberty? Does the Constitution not guarantee us any of this? Several such questions were raised in front of the nine-judge bench assembled to hear arguments on the case. 

The court room was packed with lawyers, journalists and activists. As the proceedings began at 10:30 am in the Chief Justice’s court, thanks to lawyers such as Prasanna S, Gautam Bhatia, Raman Chima and others provided minute-by-minute developments from the court room on Twitter. Soon, #RightToPrivacy became one of the top trends on twitter.

Law students formed a beeline outside the court room. Many had their ears pressed to the door. Other lawyers walking by, exchanged greetings as some asked “mamla kaha pohcha (Where’s has the matter reached)”. Others murmured about how small the courtroom was. Every one inside and outside the SC knew that the case would decide the fate of two billion citizens of the country. 

The nine-judge bench comprising Chief Justice of India (CJI) JS Khehar, Justice J Chelameswar, Justice SA Bobde, Justice RK Agarwal, Justice Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice Abdul Nazeer began by hearing the submissions of senior lawyer Gopal Subramanium. He began by explaining of the idea of “liberty” and “dignity”. Subramanium argued that the word “privacy” was embedded in protecting the liberty and dignity of a person.

He further stated that the Preamble talks about “democracy” and republic” both of which could not exist without the idea of liberty. Besides that, Article 14 [Right to Equality] and Article 19 [Right to Freedom], were an extension of privacy as the articles involve the liberty of a person. In essence, he held that privacy was an inherent natural right conferred by the state. He asserted that the fundamental rights in Part III of the Constitution needed to include privacy.

The points of contention arise from these cases — Kharak Singh vs State of UP from 1962 and MP Sharma & other vs Satish Chandra from 1954— that held dissenting opinions on right to privacy. However, in the course of his arguments, he mentioned cases such as Maneka Gandhi vs Union of India from 1978, Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala from 1973, Minerva Mills Ltd. & Ors vs Union Of India & Ors from1980 and several other landmark judgements that provided clarifications on the interpretation of the Constitution.

Subramanium’s submissions were intermittently interjected by the bench, who questioned him about the contours of privacy.

Does this indicate an inclination of the bench in favour of right to privacy as a fundamental right? Well, you decide.

Former Attorney General Soli Sorabjee was the next one to take the stage amid a crowd of over five hundred in a small court room. He appeared on behalf of retired Justice Puttaswamy — one of the first to petitioners to challenge the constitutional validity of Aadhaar. His was a brief submission, where he highlighted the fact that even if the Constitution did not have right to privacy in express form, it didn’t mean it did not exist. For instance, he said that the existence of the Right to Freedom of Press was deduced from the Right to Free Speech. 

Sorabjee’s submissions were followed by senior lawyer Shyam Divan. Many would do well to recall his arguments challenging the government’s decision to link Aadhaar with PAN.

He began by stating that there were a “chain of judgements” after 1975 to prove that privacy is a fundamental right. While stating that the specifics of privacy had to be developed on a case-to-case basis, he asserted certain aspects of privacy needed no retrospection. 

Going back to his arguments in the PAN-Aadhaar linkage case, he said that bodily integrity, personal autonomy, right to be left alone, informational self-determination, dignity, confidentiality, compelled speech, freedom of thought were integral aspects of privacy.  The same had serious implications in the case. He further stated that the state exercising any power over anyone’s body would be symbolic of a totalitarian regime, when he was asked by the CJI to not go into the merits of the Aadhaar case.

While calling the Constitution a “living document”, Divan said that right to privacy would be deduced from a joint reading of articles 14, 19 and 21. He took his arguments further by citing international human rights law from Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. As he answered the questions and counter questions of the bench, where Nariman and Chandrachud seemed to the most active bench members.

He finally concluded his arguments by saying that if right to privacy was not recognised, then many such rights would be “denuded of vigour and vitality”.

Divan’s arguments went way after the bench rose for lunch and the final submission for the day was by senior lawyer Arvind Datar. Datar made outright contentions with Kharak Singh and MP Sharma cases and said that the two cases were only loosely attached to right to privacy.

Taking a leaf from Subramanium’s submission, Datar argued that saying that we have right to life and personal liberty without right to privacy would be ironic.

In essence, all the lawyers who argued in favour of privacy held that it is a fundamental right but the contours of it could be deduced case-by-case.

Datar will continue his arguments tomorrow as the state would now brace for presenting its arguments in the case. Meanwhile, enjoy these tweets hitting out at the “anti-privacy” folks.

The author can be reached on Twitter at @shrutimenon10.