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. Today, the hearing concluded with arguments advanced on behalf of the states of Rajasthan and Haryana along with the Centre for Civil Society and the TRAI and with a rejoinder from the petitioners. Today’s hearings have been divided into two posts, the first post can be found here.
Counsel Gopal Shankarnarayan appeared for the Centre for Civil Society.
Mr. Shankarnarayan commenced his arguments by stating that the judgments of M.P. Sharma and Kharak Singh were correct and that there is no fundamental right to privacy.
He stated that following from the petitioner’s arguments, Cooper’s overruling of Gopalan would be erroneous. He also stated that 96 judgments between 1950 and 1970 had not used that parameter.
He then discussed the consequences of allowing for a fundamental right to privacy. He started by asking how such a right would be tested, stating that there would be a different test in each Article.
He then remarked upon the fact that ‘persons’ were protected under Article 19 and ‘citizens’ were protected under Article 14. He stated that if one was to blindly accept the standard in Maneka Gandhi case, that all rights flow freely into each other, then the position of non-citizens would be unsure. He also stated that there was a necessity to understand the difference between persons and citizens in the context of the Gopalan and Maneka judgments.
He discussed a case, Munn vs. Illinois and then stated that the right to privacy was flowing from Article 21. He also stated that life and personal liberty could be subject to expansive interpretation.
He then stated that the argument that MP Sharma and Kharak Singh do not deal with privacy, and could be sustained. He also stated that only certain aspects of privacy could be elevated to the level of a fundamental right.
Mr. Shankarnarayan stated that privacy could be conceptualized as being broader than what was being argued.
He then went on to discuss medical privacy. Referring to pre-natal sex determination, he stated that privacy could not be claimed if there was a competing issue with the PNDT Act, for instance. He also discussed the ‘right to refuse care’ in this context.
He stated that large aspects of privacy had already been covered by statutory provisions. He mentioned the DNA profiling bill and the CrPC.
Referring back to the consequences of a fundamental right, he stated that such a right could not be waived under any circumstances. He stated that the doctrine of waiver could not be introduced in the Indian Constitution. He substantiated this claim by referring to the case of Basheshar Nath vs. CIT.
At this point, Justice Bobde asked if there were fundamental rights that could be waived, to which Mr. Shankaranarayan responded in the negative.
Mr. Shankaranarayanan then stated that the assumption was that if a separate right to privacy did not exist, there would only be statutory protections. He said that this wasn’t the case as privacy would still be provisionally recognized.
Referring back to the respondent’s arguments about pitting the right to life of others vs. the right to privacy, he stated that the majoritarian view of the ‘elite’ could not take over. Relying on the NAZ foundation judgment, he stated that the ‘miniscule minority’s rights could not be given precedence:
While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
Arguments then turned towards discussing the import of provisions from the UDHR, he stated that not all basic principles are found in Part III of the constitution.
Mr. Shankaranarayanan concluded his arguments and Mr. Arghya Sengupta, appearing for the State of Haryana and the TRAI, commenced his arguments.
He started by referring to the doctrine of ‘purposive limitation’, which was a cardinal principle of data protection.
He then stated that the actual implementation of these principles was difficult, since the structure of these contracts allowed them to share information with other connected bodies.
Referring to Justice Chandrachud’s ‘zones of privacy’, he stated that the nature of the right was different in each zone and not just state involvement. He then stated that the Bench should not read in general fundamental rights like the petitioners were asking.
Mr. Sengupta then stated that according to his submission, privacy was the right to be left alone and denotes that ‘everyone else would have to stay off’. He concluded by stating that privacy was just the formal construct of liberty.
Referring to the case X vs. Hospital Z, he stated that the patient had the liberty to disclose or not disclose certain information and that dignity was upheld in this case.
He stated that privacy was a liberty claim and that to determine whether there was a right to privacy, there would have to be a case by case determination of whether there was a personal liberty or any other liberty and not just a claim to privacy.
He laid down a three fold test, where one would have to determine if there was a liberty interest, if this interest lied under personal liberty or any other liberty like freedom of religion and what the restrictions would be.
He discussed the right to privacy and how it could not be a ground to test legislations. Referring to the case Planned Parenthood vs. Casey, He then stated that privacy is not all prevalent and can only be found in liberty. He stated that the right to not disclose had no right of its own.
Referring to the Hohfeldian construct of jural opposites, he asked what the nature of the right would be, stating, ‘the right to do what?’. He mentioned that liberty would be a privilege and there would be a corresponding right to stay off.
He then briefly discussed the Auto Shankar case in the context of reasonable restrictions.
The arguments then turned towards discussing the nature of a right to privacy and how it would be overbroad and could therefore not be introduced.
Justice Bobde clarified that under Hohfeld’s structure, it would be the power to stay off, not the right.
Lastly, Mr. Sengupta stated that data protection was a horizontal issue and vastly complex, and was not the same as a privacy concern. Mr. Sengupta concluded his arguments and the petitioners commenced their rebuttal, starting with Senior Counsel Gopal Subramaniam.
The senior counsel stated that as per Keshavnanda Bharati vs Union of India, the social good and welfare argument was rejected. He stated that the minority opinion infused meaning.
He then stated that constitutional words were not restrictive, and there had to be a sense of fullness while interpreting them. Mr. Subramaniam went on to state that life and liberty came from Descartes, Mill and Rousseau and not merely from the Magna Carta as mentioned by the respondents.
He also referred to the incidents that took place after the Second World War, stating that nothing could be done by which liberty would be diminished.
On the Gopalan principle, he stated that it was followed by Justice Ray in Keshavnanda Bharati and was also followed in Kharak Singh. He also remarked upon its use in the Indira Gandhi case. He then referred to Justice Khanna’s opinion on inalienable rights and that the right to courts could never be taken away.
He also discussed the Maneka Gandhi and Minerva Mills judgment, remarking on the nature of inalienable rights in them.
On the matter of privacy, he stated that ‘private choices’ had been discussed in the Maneka Gandhi judgment and ‘dignity’ was used in the Keshavnanda Bharati judgment.
He then discussed to the status of privacy in other jurisdictions, referring to the standard in South Africa where privacy, dignity and liberty were held to be intertwined.
The senior counsel lastly mentioned a passage from Keshavnanda Bharati, referring to Chief Justice Sikri’s opinion on the republic also importing Article 14, and concluded by stating that the state was the custodian and would have to protect these rights.
Next, Senior Counsel Kapil Sibal commenced his arguments.
He started off by remarking on the unique persona of individuals and how ‘each person has moments of solitude’. He questioned where the ‘right to a private moment’ could arise from.
At this point, Justice Chandrachud questioned whether privacy was a subset of liberty. To this Mr. Sibal responded stating that it was a golden thread that ran through liberty. Justice Chandrachud asked if there was a difference. Mr. Sibal stated that privacy was more fundamental than liberty.
He then remarked on the changing nature of the state and the need for changes. Justice Chandrachud responded stating that the state’s actions will be in the protection of absolute liberty.
The senior counsel concluded his arguments and Senior Counsel Shyam Divan commenced his arguments.
The senior counsel stated that privacy encompassed many other aspects, like creativity and psychological well-being. He referred to a quote from John L. Mills on privacy being the last right.
He referred to privacy as a bundle of rights, and went on to distinguish 4 areas of privacy. These included personal information, value autonomy, physical space and the interface of property. He stated that the interaction and overlap of these factors should make way for a general protection.
He referred to provisions from the Census Act, specifically Section 15, stating that recorded/tabulated information could not even be summoned by the Court of Law.
He also that privacy as a right was concerned with more than just data protection, but was also concerned with surveillance, bodily integrity and self-determination.
The senior counsel concluded his arguments and senior counsel Anand Grover commenced his arguments.
The senior counsel started off by discussing Kharak Singh and the notion of liberty. He remarked on the discussion of privacy being a common law right, stating that it could not be accepted in India. He also mentioned that elevating a common law right or a statutory right to a fundamental right could be possible.
He mentioned the right to health and how it was now progressively realizable.
Remarking on the status of privacy in other jurisdictions, he stated that American jurisprudence was considered lacking in this regard and that jurisdictions like Canada should be paid attention to. He discussed the notions of liberty and security in Canada, which also read in privacy, stating that there was a reasonable expectation of privacy. He also remarked on the European Court devising their own tests for privacy and the recognition of the right by the Inter-American Court.
He then discussed the landmark judgment, Loving vs. Virginia, by which inter-racial marriages were recognized in the United States, stating that the concepts of choice and privacy were integral to this judgment.
Lastly, he discussed the movie ‘Aligarh’, and the judgment the story was based on. He stated that the Allahabad High Court recognized a right to privacy in this regard.
The senior counsel concluded his arguments, and senior counsel PV Sundaresan commenced his arguments.
He remarked on the private nature of thoughts and feelings, stating that a person had a right to be privy to them. He stated that liberty was not limited to physical liberty and mentioned that the allegedly vague nature of privacy was not concrete enough to be a ground for denial.
Mr. Sundaresan concluded his arguments and Senior Counsel Meenakshi Arora commenced her arguments.
The senior counsel stated that under Article 372 all laws shall continue to be protected. She also stated that protection under Article 21 were always present, even before the Constitution was realized.
Referring to Articles 528-531, she remarked upon Justice Khanna’s reading of the Brandeis judgment.
She then remarked upon the nature of fundamental rights, stating that there was no fixed content and that generations must pour their content into the rights.
She also stated that privacy was a multi-faceted right and that it was not open to the state to say that it was an elitist measure. She also stated that fundamental rights could not be pitted against each other to the extent that the right to life of others could only be upheld if privacy is given away. She remarked upon the nature of state as parens patriae and how all rights needed to be protected.
Senior counsel Meenakshi Arora concluded her arguments, and senior counsel Sajjan Poovayya commenced his arguments.
He discussed the collection of data and 26 statutes where privacy was recognized and the mechanism in place to protect the rights.
He remarked upon the respondent’s arguments, stating that they argued that there was a right but not a fundamental right, which seemed merely like a matter of nomenclature.
He concluded his arguments and lastly, Senior Counsel Arvind Datar commenced his arguments.
He stated that Part III of the Constitution was concerned with fundamental rights and if privacy was seen as a sub-set to a fundamental right, then by virtue of being a subset to a larger set, it would also be a fundamental right.
He also remarked upon the respondent’s arguments about privacy being vague, stating that the correct postulation would be to say that it was incapable of precision or a precise definition, and not merely vague. Lastly, he remarked upon the danger of omitting a right like privacy in 2017.
The hearing has concluded and the judgment is reserved.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi