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

Privacy is not just a “common law right”, petitioners arguing for right to privacy said before a nine-judge bench of the Supreme Court on Wednesday. The bench is addressing the limited question of whether privacy as a right is enshrined in the Constitution of India.

Laws across the world recognise the right to liberty and privacy, said Senior Counsel Gopal Subramanium representing one of the petitioners, adding that both are essential conditions to exercise any fundamental right. The minority view in the 1962 Kharak Singh case is the correct view, Subramanium added.

Senior Advocate Shyam Divan, representing another petitioner, said that for four decades, successive court judgments have recognised the right to privacy. “There are 14 judgments, one after another, which recognise the right to privacy,” he said.

The minority view in the 1962 Kharak Singh case, which held that right to privacy is enshrined in the Constitution, was later endorsed by the judgment in the Maneka Gandhi case. he added.

Senior Counsel Soli Sorabjee, standing for one of the petitioners, said it is necessary to demolish the theory that right to privacy is not explicitly mentioned in the Constitution and is, therefore, non-existent. “Privacy can be deduced from other Fundamental Rights mentioned in Part III of the Constitution,” he added.

Besides, Kharak Singh's case, which forms the basis of the government's argument against right to privacy, makes only a stray reference to the matter, Senior Counsel Arvind Datar argued for other petitioners in the matter. When the Constitution is read in its totality, it becomes clear that right to privacy is part of the Fundamental Rights enshrined in the Constitution, he added.

The bench will continue hearing the matter on Thursday.

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.

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