Right to Privacy hearing in Supreme Court – Day 6, August 2, 2017:
It was the last day of hearings by the bench and both halves had been allotted almost equal time. As it turned out, the government took much longer to complete it’s arguments leaving the petitioners lesser time at the end. While written submissions are made, the time spent in court matters a great deal since pertinent points can be highlighted and articulated better. Also, it allows the judges to question and get clarity on specific issues immediately. Nevertheless, the bench has nine senior and well experienced judges who will hopefully not be influenced by the additional time defense took.
The hard line taken by the Union of India continued on the last day. A large part of their argument is based on a paranoid fear that privacy will somehow hamper welfare. The judges have asked more than once why welfare cannot be done without Aadhaar for example. When the government has no answers, it digs into precedents from over half a century ago. The defense would like to use these ancient laws because it suits their cause, yet they want technology and biometrics because this is the “latest” and only manner of providing social benefits.
For the government, the Constitution should not evolve, only the means to capture citizens private data should evolve. It is quite disgustingly anachronistic but fits in well with the Modi government which preaches Vedas even while inaugurating an allopathic super specialty hospital with latest gadgets. They to be unaware irony of it all, thinking that they can fool all the people all the time.
ASG Dwivedi wanted privacy to be located in one constitutional Article – not all over the place, reiterating that privacy as a mercurial abstract concept which cannot be located in Part III (which deals with all FR’s) as had been suggested earlier by the CJI.
Curiously, Justice Chandrachud said that India is an economic powerhouse because of it’s 1.3 billion people with their knowledge economy and privacy must not stifle that economy.
Curious because it seemed like the same line taken by pro Aadhaar business houses. It is also eerily similar to a the recent statements made a by two influential business heads – Nandan Nilekeni and Mukesh Ambani about data being the “new oil” because of the sheer amount of the data generated from this huge population.
However that was the only time today that the anti Aadhaar camp had some jitters.
The government pointed out that Privacy ought to be “reasonable” and if there is no injury (damage) caused then there is no question of privacy. His ant-privacy rant continued and annoyed the bench quite often. Justice Nariman firmly told him that that “just because currently privacy is nonexistent, it is no ground to say it should not exist.”
The government said that large aspects of privacy are already covered in existing ordinary laws and we don’t need a separate (fundamental) right to provide protection. US does not use a fundamental right to privacy they said, rather liberty was protected.
The ASG said that even SC rules seek a lot of personal information and identity information including Aadhaar when PILs are filed. This is false and Justice Chelameswar pointed out that Aadhaar is optional for filing PIL’s and the SC uses the data ONLY for the purpose it was taken for. Obviously, this was a hint that the Aadhaar data with the government was being used for ‘other’ purposes.
Yet, shamelessly the counsel termed privacy a “fading” concept and said that there is no privacy issue with respect to sharing basic identity information.
Justice Chandrachud said that even though with the advancement of technology the earlier notions of privacy is broken, the Constitutional notion of privacy has to still stand and in fact is more necessary now.
Gopal Subramanium (GS) expressed disappointment at the State’s stand and said that there is no need to look at all the American judgments to determine if there should be a right to privacy. The words in OUR Constitution are not narrow and need to be understood/interpreted in their fullness. Even if privacy is a borrowed notion that is irrelevant because so are liberty, sovereignty etc.
Petitioners asked the bench not to just look at American law because it is quite restrictive. Look at the ECHR, Latin American law, the Canadian charter. Privacy might be disputed in America but not anywhere else. Privacy is a recognised fundamental right under the South African Constitution he said. In fact, Justice Bhagwati helped with the South African Constitution.
GS traced the evolution of human rights. Referring to IBM, census, Holocaust in Nazi Germany, WW II then talked about suspension of fundamental rights during the Emergency. GS distinguished today from that emergency. Whereas in emergency there was a proclamation, here we have no such declaration and yet the government wants liberty to be suspended.
Kapil Sibal made a passionate cameo saying each of us in this courtroom has a persona that’s unique. Each of us have moments of solitude. Private moments. Where does the right to private moments come from? Does the State confer it? Or is it part of our persona? What I eat, What I say to my wife etc is my privacy.
Adv Grover, Shyam Diwan, PV Sundaresan, Arvind Datar all spoke for a brief with each one reiterating the need for a FR to Privacy.
Perhaps, the petitioners’ case was best summed by Meenakshi Arora who said:
“The state cannot say I will give you welfare benefits if you give me your privacy.”
Hearings are complete and judgement is reserved.
There is no fixed limit – it is up to the judges.
The author is a Mumbai-based independent researcher. Kindly send your feedback to –