SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part II)

By Arpita Biswas

On the 19th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20th and the 26th of July. Our post discussing the hearing on the 20th of July can be found here. Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the first post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.

Appearing for the respondents, Attorney General K.K. Venugopal started with addressing whether the right to privacy was a fundamental right under Article 21. He read out Article 21, and stressed on the exception of procedural requirements.

Relying on Maneka Gandhi vs. Union of India, he stated that Article 21 is restricted to life and personal liberty. Privacy has not been mentioned in this case, which according to the Attorney General, was a deliberate omission.

Focusing on the structure of Article 21, he stated that the deprivation of rights has been built into it. The principle of deprivation also applies to the right to life and liberty, as a result of which these rights are not absolute. Through the built-in exception, the state can take away the right to life and personal liberty, as is seen in instances of the death penalty and incarceration for crimes.

Referring back to Maneka Gandhi, the Attorney General stated that the procedure established by law has to be ‘just, fair and reasonable’.

At this point, Justice Chandrachud asked about the concomitant rights mentioned earlier, which included the right to travel and also the right to a clean environment and asked why those rights were qualitatively different from a right to privacy.

The Attorney General explained that the right to privacy was a specie of the genus, personal liberty. He went on to state that each fundamental right has several species and sub-species and that by virtue of being a specie, each right could not be elevated to the level of a fundamental right. Each specie would have to be scrutinised in its own context. Privacy may be a specie, but it could not be a fundamental right.

The Attorney General then argued on the assumption that right to privacy is in fact a specie of personal liberty. As an amorphous term, it would have its own sub-species. While stating that privacy had several sub-species of its own, he also forwarded the argument that each of these sub-species could not be elevated to the level of a fundamental right.

The right to privacy, according to the Attorney General, is not a homogenous right.

Referring back to the rights under Article 21, specifically the right to food and shelter, the Attorney General stated that the right to life of others would take precedence over the right to privacy.

He stated that claiming a right to privacy would act against the interests of the 270 million starving people in the country. If the right to privacy would get in the way of the smooth functioning of the Aadhaar system, it would lead to the deprivation of food and shelter for millions, ensured by welfare schemes.

He referred to a World Bank report, which stated that a system like Aadhaar should be followed in every developing country. He also stated that biometric collection of data would not lead to fundamental rights being violated, since the right to life of others would be upheld.

He then went on to discuss the Constituent Assembly Debates and also referred to the 4th Amendment in the American Constitution, and how search and seizures were permitted under the amendment.

He stated that interpretation should be carried out in an object-oriented manner. On the matter of interpretation, Justice Chandrachud enquired if he was endorsing the ‘originalist’ school of interpretation, according to which the original intent of the framers, and not evolved jurisprudence had to be considered.

The Attorney General said that it could be interpreted as the Bench preferred.

Referring back to the point about poverty and deprivation, the Attorney General stated that the right to personal liberty could not exist without the right to life and therefore, if conflicts arose, the right to life would prevail over the right to personal liberty.

He then discussed the rise of privacy as a tort and how it was not “a simple matter”.  Referring to cases from the House of Lords, he stated that developments under privacy could not be contained under one single right.

By relying on case laws of several jurisdictions, he stated that courts have generally refused to formulate a specific right to privacy. Aspects of privacy could form common law rights, not fundamental rights.

The Attorney General once again, revisited arguments about poverty and the right to life of others.

At this point, Justice Chandrachud stated that privacy was not “an elitist construct” and that it was for the benefit of the masses as well.

He elaborated his statement with an example. Referring to health concerns of rural Indian women, he asked if forced sterilization of women with cervical cancer could be protected by any fundamental right other than privacy.

The Attorney General referred back to his previous argument, stating that if handing over biometric data was essential to save lives of other people, should you be allowed to not hand over your data?

On this point, Justice Chandrachud stated that one could not deny their obligation to hand over data, as long as certain conditions were met, stating that if it was going to be used by the state to meet legitimate ends, then the obligation could not be denied. He also stated that private organizations should not be allowed to access data without consent.

Referring back to the nature of the right to privacy, the Attorney General stated that the right was not a composite, homogenous right. He stated that one could not combine diverse sub-specie and refer to them under one nomenclature. The right way would be to investigate each sub-specie.

Justice Bobde enquired about the qualitative difference between a fundamental right to privacy and a common law right. He stated that they were both protected rights and enforceable by law.

The Attorney General stated that the common law right could not be a public law right, and one could only file a civil suit.

Justice Bobde stressed on the qualitative difference and clarified that the above mentioned points were matters of implementation.

The Attorney General stated that unlike fundamental rights, common law rights could not be tested against the constitution. Common law remedies are wide and they could be sought out by a civil suit and damages.  The action itself would be void.

Discussing the matter of pitting fundamental rights against each other, Justice Nariman described the various stages of the right to privacy being recognized, stating that at the first stage every sub-specie of privacy, under the right to personal liberty, would be protected under Article 21. At the second stage, a scheme like Aadhaar would be enacted and at the third stage, one would consider whether the validity of state action was ‘just, fair and reasonable’. He clarified that the process wouldn’t just be limited to pitting one fundamental right against another.

Referring to Article 25, he went on to state that even when there was an express hierarchy between different rights in the constitution, courts had held that those rights would have to be harmonized, and not isolated.

The Attorney General referred back to his contention, stating that the right to privacy could not be realized in a developing country like India. He also expressly stated that the Aadhaar scheme would not turn India into a totalitarian state.

He stated that the right to privacy was vague and amorphous – the construct of privacy was sociological and would not fit in the “jural” context.

At this point, the Bench asked if there could at all be a fundamental right, and clarified that this was a separate question from whether there was a specific right in this context. They clarified that the scope of the case was not considering whether the Aadhaar scheme was fundamental or not. The Bench further clarified that the issue of ‘sub-species’ was not going to be considered in this case either, and stressed on the scope of the case.

Justice Bobde clarified that the petitioners had already stated that the right was homogenous.

Justice Nariman discussed different forms of privacy. He referred to privacy relatable to the body, the two sub-species related to mind, the dissemination of information and private choices. He then enquired as to which of these aspects would not fit under Article 21.

The Attorney General stated that it was circumstantial.

Chief Justice Khehar stated that circumstances would only come up if there was a fundamental right to privacy to begin with.

The Attorney General referred to a list of countries that did not uphold the right to privacy, to which Justice Chandrachud stated that there were several other countries where privacy is a recognized right. The Attorney General stated that only certain jurisdictions would have persuasive value though.

The Attorney General also stated that privacy is a derivative interest and is automatically secured by more concrete rights. Referring back to Justice Nariman’s query about bodily integrity and privacy relating to the mind, he stated that these could be secured by other rights, and that recourse need not be had to privacy. Stressing on the vague nature of privacy as a right, the Attorney General stated that the sub-species of privacy would have to be decided before the constitutional bench.

Justice Chandrachud discussed privacy interests in different contexts. Drawing on the example of an employment form, he stated that if a woman is asked how many children she has or whether she’s married, this may not amount to a privacy concern. But, if the same form asks a woman how many abortions she’s had, there could be a privacy interested involved.

Similarly, if a census form asks what marriage you were born of, this may involve a privacy interest.

However, he went on to state that in a few specific instances, such information could be relevant for legislative interests. As per a Maharashtra legislation, the third child in a family would not be allowed to contest elections. In this context, the state has a legitimate interest in knowing specific kinds of information. Concluding his remarks, Justice Chandrachud stated that the right to privacy was to be calibrated.

The Attorney General then stated that a right to privacy could not be claimed if the information in question is already in the public. He relied on examples of census information and information disclosed for elections.  On the point of elections, the Bench stated that elections would not be a relevant example in this context. This lead to a discussion on the right to privacy and right to information under the Representation of People Act, 1951.

The Attorney General went on to discuss the “essence of privacy” and the disclosure of information under Section 33 of the ROPA, by relying on State of West Bengal vs. Sri Pronab Kumar Sur and Ors, AIR 2003 SC 231. He read out relevant parts of the judgment:

“It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anxious consideration to this argument, I am unable to uphold the same. In this context, I would like to recall the apt words of analyzing the right to privacy as an ingredient of Article 21, it was observed:

“There can be no doubt that privacy- dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior”…

…When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.”

The Attorney General went on to state that even if there is a right to privacy, it would have to function within certain limitations.

Chief Justice Khehar clarified that privacy was an undefined fundamental right. He stated that even defined fundamental rights had limitations, so if privacy is recognized as a fundamental right, there would be limitations built in.

The Attorney General referred back to the point of the marginalized sections of society in the country and how the right to life of others was paramount.

Justice Nariman interjected stating that similar ‘emotional pleas’ were made when the constitutionality of the right to property was being considered. The right to property was removed from the constitution, without due regard being had to the fact that marginalized sections of society would also benefit from such rights. Similarly, marginalized sections would also benefit from a right to privacy.

Justice Chandrachud agreed, stating that we must not “forget the little man’s right to privacy”. He stated that people who have been marginalized have also suffered terrible harms in the absence of a right to privacy, citing examples of forced sterilization of women after the Second World War.

The Attorney General asked to be allowed to argue the matter in front of the five judge bench. The Bench refused, stating that the reason the present bench was hearing the matter was because the respondents did not agree to argue in front of a five judge bench.

At this point, the Attorney General closed his arguments stating that the:

1) There is no fundamental right to privacy.

2) If there is a fundamental right to privacy, it must be a qualified right, since it consists of a diverse sub-species of liberty and every aspect will not qualify as a fundamental right.

At this point, counsel for UIDAI referred to ‘another dimension’ of the argument, stating that privacy may be a right, but it cannot be a fundamental right.

Arguments will continue tomorrow (27/7).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

5 thoughts on “SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part II)

  1. Pingback: SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part I) | The CCG Blog

  2. Pingback: SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part I) | The CCG Blog

  3. Pingback: SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part II) | The CCG Blog

  4. Pingback: CCG on the Privacy Judgment | The CCG Blog

  5. Pingback: SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part II) – Buss Test Site

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