Alok Prasanna Kumar August 3, 2017
Story Highlights
- Respondents argued that while some aspects of privacy are already protected under the Constitution not all aspects of privacy are necessarily protected or should be protected under the Constitution
- It remains to be seen whether it is possible to break up the right to privacy into aspects which can and cannot be protected under the Constitution
- The Supreme Court reserves judgement. The final judgement should be out before August 27 when Chief Justice of India Jagdish Singh Khehar retires
The proposed one-day hearing of the nine-judge bench of the Supreme Court (SC) ended on Wednesday, August 2, after six full days of hearing and nearly three weeks after it began.
Though the reference was made to the nine judges to answer this question: whether the previous judgements of the SC in MP Sharma v Satish Chandra and Kharak Singh v State of UP were still in good law, the scope has expanded slowly but steadily into requiring the apex court to decide whether the right to privacy is a fundamental right, and what aspects of such right to privacy enjoy constitutional protection.
The final day saw the respondents wrap up arguments with senior advocate Rakesh Dwivedi continuing from where he left off on Tuesday, August 1, and Gopal Shankarnarayanan for the Centre for Civil Society; Arghya Sengupta (Disclosure: Arghya Sengupta is this writer’s colleague at the Vidhi Centre for Legal Policy where he is a Senior Resident Fellow) for the State of Haryana; and the Telecom Regulatory Authority of India also making submissions.
Dwivedi’s approach of slicing and dicing the right to privacy was taken forward by Shankarnarayanan and Sengupta, both of whom argued that while some aspects of privacy are already protected under the Constitution not all aspects of privacy are necessarily protected or should be protected under the Constitution
Dwivedi’s approach of slicing and dicing the right to privacy was taken forward by Shankarnarayanan and Sengupta, both of whom argued that while some aspects of privacy are already protected under the Constitution (such as the right to choose and the right to one’s bodily autonomy) not all aspects of privacy are necessarily protected or should be protected under the Constitution. (You can read Dwivedi and Shankaranarayanan’s submissions here).
The post-lunch session saw the counsels for the petitioners take a few minutes each to rebut the main points made by the respondents. With time running short and the judges having indicated that they wanted to wrap up the hearing by the end of the day, most chose to rebut a specific point made by some of the lawyers for the respondents. In addition, the State of Kerala also joined four other non-NDA ruled states to argue that the Constitution did indeed protect a right to privacy. You can read the submissions on behalf of the State of Kerala here.
While the last two counsels’ arguments brought much-needed nuance to the debate, it remains to be seen whether it is possible to break up the right to privacy into aspects which can and cannot be protected under the Constitution
While the last two counsels’ arguments brought much-needed nuance to the debate (as Justice Rohinton Nariman acknowledged), it remains to be seen whether it is possible to break up the right to privacy into aspects which can and cannot be protected under the Constitution. One argument advanced by respondents almost consistently was that protecting all aspects of privacy is not desirable for reasons ranging from impinging other rights and limiting citizen choice, to standing in the way of social welfare laws. Irrespective of the reference question framed, the actual crux of the differences between the sides essentially came down to this: can the state compel you to part with certain information about yourself with no constitutional limits on what it may use it for and how it may use it?
This must not be seen purely in the context of the Aadhar law and scheme. It has implications for a whole range laws and schemes of the government which require you to part with some information about yourself, not necessarily biometric data.
Take for example the question: should the government be allowed to collect caste, religion and socio-economic status data? The answer cannot obviously be a blanket yes or no. It will have to depend on how the government is collecting the data, what it promises to use it for, and what the statutory protections are to ensure that such data is not misused in any way.
The SC has reserved judgement on these questions and the final judgement may be out in a few weeks, at any rate before August 27 when Chief Justice of India Jagdish Singh Khehar retires
The range of misuse can be from annoyance (spam calls) to harassment (denial of welfare entitlements) to violence (targeted communal riots). This raises the question as to whether it is ever possible to dissect aspects of the right to privacy as argued? The laws may themselves may not permit such misuse, but given India’s long and troubled experience of such misuse of data, should we leave it to the government to decide when and how much it can allow use and misuse of data collected from individuals? And is it possible at all to say that absence of privacy of one’s information will not affect the right to choose or the right to bodily autonomy?
The SC has reserved judgement on these questions and the final judgement may be out in a few weeks, at any rate before August 27 when Chief Justice of India Jagdish Singh Khehar retires. Given the complexity of the issues raised and their implications for the future, this isn’t a judgement that can be hammered out overnight. Given the spirited debate multiple judges engaged in with the counsels arguing the case, it is likely that we will see multiple opinions rendered by the judges. One hopes that whatever they say and decide, the conclusions of the bench can be easily discerned and is not something that will itself be debated in future judgements!
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