Before delving into discussions between the counsels and the bench, it is worth noting the surprising stand on privacy taken by the State in the WhatsApp case last week. Contradicting all its assertions in the Aadhaar privacy case, the Centre argued in the WhatsApp case that personal data is integral to life and dignity under Article 21.
The counsel for the State argued that upholding a right to privacy could deny millions of poor people the right to food. The state offered the following choice — two square meals per day, or privacy, asserting that a poor person would pick the former.
To further the argument that privacy is not a fundamental right, the counsels stated that personal liberty protected under Article 21 was restricted to physical liberty, and did not include the mind. The Bench questioned how such a statement could even be made today.
Furthering the argument that privacy and data could be protected only as a statutory right, the counsels argued that the protection of data was traceable to Article 300A of the Constitution. This is the provision granting property as a legal right to the people, not a fundamental right.
Moving to the arguments made by the Unique Identification Authority of India (UIDAI), the counsel argued that statutory protection to privacy was sufficient. Privacy, being subjective and varying from context to context, the legislature is better positioned to protect privacy. For example, the principles will be different for IT returns and different for health records.
An important discussion that ensued was on how a statute is to be challenged if a statute invades privacy. Under Indian laws, a law can be challenged in Court only if it violates fundamental rights. For this reason, the Bench pointed out that statutory or common law protection alone to privacy would prevent invasive laws from being challenged in Court.
One of the main arguments of the State was that a new fundamental right could not be created except by legislature, and the Court did not have the power to do so. This was particularly so because the makers of the Constitution had rejected the right to privacy as a fundamental right.