SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part II)

By Arpita Biswas

Yesterday, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing yesterday’s hearings can be found here and here. Today, arguments were advanced on behalf of respondents, which has been covered in two posts. The first post discusses arguments made by the Attorney General and the second post covers arguments made Senior Counsel CA Sundaram, appearing for the State of Maharashtra.

Mr. Sundaram started off his arguments by posing a few questions and statements.

He first stated that the fundamental right to privacy could not be considered in several facets or aspects, but as a whole. He stated that a fundamental right could not be read in ‘bits and pieces’. He furthered his argument by stating that either it is a fundamental right, or it is not, it could not be considered in fragments.

He also stated that the introduction of a fundamental right could not be done through mere implication and could only be carried out through an amendment.

Lastly, he stated that if privacy was to be recognized as a right, it would have to be traced back to an existing right.

Mr. Sundaram then stated that privacy was an incidental factor of personal liberty. He cited the example of Kharak Singh, stating that an invasion of one’s home was not problematic because of the ‘wish to be left alone’, but because personal liberty itself was being infringed. The manifestation of privacy was incidental.

He then posed 3 questions to the Bench:

1) What is privacy?

2) Would an unambiguous understanding of privacy be possible?

3) Could it be a fundamental right?

Referring to the second question, he stated that an unambiguous understanding could not be possible. He stated that privacy was a concept, and that it could not be afforded the status of a right.

At this point, the Bench asked if fundamental rights like the right to ‘life’ have been defined.

Mr. Sundaram stated that there was a certain amount of exactitude to those fundamental rights, stating that ‘life’ could be qualified in certain ways.

As opposed to this exactitude, privacy is merely a concept. Chief Justice Khehar stated that dignity was also a concept.  Justice Nariman stated that privacy could be seen as a ‘major facet’ of dignity.

Mr. Sundaram stated that this conceptualization would go against the petitioner’s submissions, as they held that liberty and privacy were inter-changeable. Chief Justice Khehar disagreed with this point.

Mr. Sundaram continued, stating that if there were to be a fundamental right to privacy, then it would be afforded a status above what could otherwise be a common law right.

Referring back to the matter of defining privacy, he stated that according to the Constituent Assembly Debates fundamental rights were to be as exact as possible, and not unambiguous.

Justice Chelameshwar stated that it was an ‘attempt’ and perhaps not an exactitude.

Referring to the fundamental right of speech and expression, Mr. Sundaram stated that in some instances, the attempt is exact. He stated that speech has a more exact meaning, as compared to privacy, which is just a concept.

Justice Chelameshwar asked if liberty could be held to be affected by data collection.

Mr. Sundaram stated that the petitioner’s submission held that data collection affected privacy and that was presumably the scope of the current hearing.

Mr. Sundaram then stated that an action could only be tested against a fundamental right and that privacy could not be ‘injected’. At this point, Justice Nariman pointed out that dignity was also injected, which is how it is now read with right to life.

Mr. Sundaram stated that right to dignity was not a fundamental right as such, right to life was the fundamental right. He also stated that the preamble makes mention of dignity, but not privacy. Privacy was never a natural right.

Referring back to Mr. Sundarams argument about open defecation and the right to live with dignity, Justice Bobde stated that there are instances where dignity would not be possible without privacy. In the instance of open defecation, the issue is also a lack of privacy, not just dignity.

Mr. Sundaram retorted stating that dignity is incidental to the right to life, and privacy is incidental to dignity.

He then continued with the argument that privacy was an ambiguous, inchoate right, with no exact definition.

An attempted definition of privacy could encompass the ‘right to be left alone’. He said that this conception of the right was the anti-thesis to the concept of society. He referred to a quote by Aristotle, “He who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god”, stating that this conception could be problematic. He also referred to the Oxford Law dictionary definition of privacy which included – being ‘withdrawn from society’ and the ‘freedom from disturbance and seclusion’. Lastly, he referred to the 2003 Supreme Court case of Sharda vs. Dharampal, quoting the definition of privacy in the case – “”Privacy” is defined as “the state of being free from intrusion or disturbance in one’s private life or affairs”.”

Following from the above, Mr. Sundaram stated that if any of the above were to be considered, the fundamental right would have to include the right to be left alone.

He then goes on to state that conflating privacy and liberty would be fallacious. He referred to the standard in the Kharak Singh judgment and said that it was correct, stating that there would have to be a direct and tangible infringement.

In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness.

At this point, Justice Nariman interjected stating that the Kharak Singh judgment was incorrect. He further stated that movement and liberty had to be considered together. He also stated that the judgment was contradictory as far as privacy was concerned, since it upheld cases like Wolf vs. Colorado and Semayne’s case, but rejected the right of privacy.  Mr. Sundaram then stated that the issue in Semayne’s case could be traced back to a right to property and not liberty, the Bench disagreed. The discussion then veered towards whether privacy could be tangible right.

Referring back to the Kharak Singh standard, Justice Nariman stated that tangibility was only limited to Article 19(1)(b) in the case.

Mr. Sundaram pointed out that in Kharak Singh the issue was a physical intrusion, which could be traced back to the concept of ‘ordered liberty’, as postulated by Justice Frankfurter in Wolf vs. Colorado – which surveillance could not be. He then stated that privacy could not be a standalone right, and that the larger fundamental right would also be considered effected if privacy is effected.

At this point, the Bench enquired about instances where privacy is affected but a fundamental right is not. This was followed by Mr. Sundaram presenting examples.

Mr. Sundaram once again reiterated that there was no fundamental right to privacy, he then went on to analyse Govind vs. State of Madhya Pradesh.

He stated that this judgment had been erroneously understood for a while now, and that subsequent judgments have relied on it, stating that there is a right to privacy.

According to Mr. Sundaram, what was considered to be an establishment of a right to privacy was merely an assumption of privacy.

The Bench agreed that there may have been a misinterpretation.

Mr. Sundaram then stated that there was no fundamental right to privacy in the United States either. He cited the case of Younger vs. Harris, 401 U.S. 37 (1971), which involved a compilation of the social history of juveniles. He also cited Roe vs. Wade and Skinner vs. Oklahoma to state that there was no fundamental right to privacy recognized, only zones of privacy. Zones of privacy could be created by certain constitutional guarantees, but would have to be limited to ‘ordered liberty’.

Referring to the judgment of Whalen vs. Roe, Mr. Sundaram states that it does not ipso facto create a constitutional right to have government protect privacy. The case stated that there was no general right to non-disclosure. He also stated that government actions were to be weighed against rights.

Justice Nariman, referring back to the limitation of privacy in American jurisprudence, stated that privacy would need to consider more than just ‘ordered liberty’ and should also consider dignity.

Mr. Sundaram stated that data could be protected through common law rights, statutory rights and regulatory mechanisms, and not through privacy.

Justice Chelameshwar responded stating that these forms of rights could be easily abrogated.

Mr. Sundaram then stated that including an inchoate provision like privacy could be dangerous. The interpretative process would be continuous.

Justice Chelameshwar stated that this could be true of any fundamental right.

Mr. Sundaram also stated that “virtually any government action would infringe the right to privacy”. He then went on to discuss the constitutional history to protect of privacy. He discussed how personal liberty was previously ‘civil’ liberties, but was narrowed down. He stated that ‘personal’ was brought in to qualify liberty and that price control may also be a violation of privacy. He then reiterated the point of privacy being deliberately dropped in the Constituent Assembly debates, to which Justice Nariman responded stating that ‘due process’ was given the same treatment too.

Mr. Sundaram reiterated that personal liberty and privacy were to be considered separately.

Arguments will continue on Tuesday (1/8).

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

4 thoughts on “SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part II)

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

  2. Pingback: SC Constitution Bench on the Fundamental Right to Privacy – Day V | The CCG Blog

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

  4. Pingback: SC Constitution Bench on the Fundamental Right to Privacy – Day V – Buss Test Site

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