Fundamental Rights Can’t Be Exercised In Absence Of Privacy, Petitioners Argue In Supreme Court

It is not possible to exercise Fundamental Rights in absence of the right to privacy, petitioners argued before a nine-judge bench of the Supreme Court as hearings continued for the second day.

The bench is addressing the limited question of whether privacy as a right is enshrined in the Constitution of India.

Dignity is always associated with privacy, and is the foundation of Article 21 of the Constitution, Senior Counsel Anand Grover, representing one of the petitioners, said. “The 1954 MP Sharma case does not set the precedent that privacy is not a fundamental right; his issue was not raised in that case,” he added.

Senior Advocate Arvind Datar, on behalf of another petitioner, said contours of privacy will have to be developed on a case-to-case basis. He also gave the example of MP Sharma and 1962 Kharak Singh cases and said these do not hold that privacy is not a fundamental right. “The limited point that they make on privacy must also be overruled,” he added.

Also Read: No Liberty Without Right To Privacy, Petitioners Argue Before Supreme Court

State must also ensure that there is no violation of privacy rights by private parties and set a legislative policy to that effect, Datar said.

Senior Counsel Sajan Poovayya, standing for another petitioner, said: “Right to privacy also extends to information that I choose to put in public domain. Protection against illegal surveillance is not just inside my home but also when I am walking on the street in public.”

He said that surrender of information to one is not surrender of information to all, and the fact that “state can collect and monitor data on me itself leads to a restraint on my actions”. Ones digital property is as important as ones physical property, he added.

The hearing continued from Wednesday, where a series of arguments, saying there is no liberty without privacy, were presented by senior counsels representing the petitioners.

While Senior Counsel Gopal Subramanium said laws across the world recognise the right to liberty and privacy, Soli Sorabjee said it is necessary to demolish the theory that right to privacy is not explicitly mentioned in the Constitution and is, therefore, non-existent.

A five-judge Constitution bench of the apex court that was hearing the validity of Aadhaar and certain aspects of privacy had referred the matter to a nine-judge bench on Tuesday. The nine-judge bench has to re-examine whether the two earlier rulings – 1954 judgment in MP Sharma's case and 1962 verdict in Kharak Singh's case – are the correct expressions of the Constitution. An eight-judge and a six-judge bench, in the two cases, respectively, had held that there's no fundamental right to privacy.

The nine-judge bench is being led by Chief Justice of India JS Khehar and includes Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer.

During the hearing on Tuesday, the central government took the view that privacy is a common law right and the Constitution doesn't explicitly provide for it. The government argued that the founding fathers deliberately omitted the fundamental right to privacy from the Constitution.