Mr. Arvind Datar began his arguments by denying that MP Sharma & Ors. vs. Satish Chandra, District Magistrate, Delhi & Ors. (1954) or Kharak Singh vs. State of Uttar Pradesh (1962) held that the right to privacy is not a fundamental right. M.P. Sharma dealt with a challenge to search and seizure of incriminating documents from company offices under Article 19(1)(f) and 20(3). The court considered whether such a seizure amounted to procuring discriminatory evidence from the accused himself and the right to privacy never came up. He then turned to the 4th amendment to the US Constitution which protects against unwarranted search and seizures. Justice Chelameshwar and Justice Nariman suggested that reliance on the 4th Amendment was misplaced as Article 20(3) protection against double jeopardy and self-incrimination is analogous to the 5th Amendment of the US Constitution.
Mr. Datar explained that privacy must be understood by reference to the 4th, 5th, 9th and 14thamendments to the US Constitution and the decisions in Boyd vs. United States (1892) and Gouled vs. United States (1920). He observed that Olmstead v. United States (1928) which was relied on in MP Sharma was overruled in Katz v. United States (1967). Justice Brandeis’s dissent in Olmstead which recognized the right to be left alone was affirmed in Katz where an Federal Bureau of Investigation agent who placed a phone-tapping device in a public phone booth without a Magistrate’s permission was held to violate the 4th Amendment. Justices Nariman and Chandrachud and Mr. Datar then discussed Griswold vs. Connecticut(1965) where a law prohibiting the consumption of any drug, medicinal article or instrument for the purpose of preventing conception was struck down as a violation of an implied fundamental right to privacy. Mr. Datar suggested that these privacy cases in the US prompted Justice Matthew to recognize the right to privacy in Gobind vs. State of Madhya Pradesh (1975)
Mr. Datar explained that Kharak Singh implicitly upheld the privacy right by relying on Wolf v. Colorado (1949) and striking down Regulation 236(b) of the U.P. Police Regulations which permitted domiciliary visits by police at night. He suggested that the Union of India was relying on one stray statement that was merely obiter and sought to build a fortress out of a dictionary. He suggested that it was anachronistic today to say that Article 21 which has generated 40 other rights excludes privacy. Justices Chandrachud and Nariman accepted that Kharak Singh recognizes the right to privacy without explicitly using the word.
Justice Chandrachud mused about the problems with recognising an unqualified and absolute privacy right. Should privacy be open-ended to protect choices relating to marriage, procreation, sexual orientation and gender identity? Does privacy protect against State surveillance as well violations by non-State actors? Moreover, an absolute right to privacy would raise doubts about the validity of Naz Foundation (2014)? He wondered if the court should identify the essence of privacy to be the liberty to not share certain facets of one personality with the world without defining the right exhaustively.
Mr. Datar suggested that it was sufficient to hold that M.P. Sharma and Kharak Singh are not binding authorities. Justice Chelameshwar disagreed and pressed for a fuller account of the scope of the privacy right. Mr Datar expressed his inability to sketch the contours of the privacy right as it could also be violated by non State actors and developed on a case to case basis. Justice Khehar persisted that this Bench should determine the extent of the privacy right. Mr. Subramanium interjected that the privacy right cannot be exhaustively catalogued and should be derived from Articles 14, 19, and 21 read together. In addition, Mr. Datar suggested that the privacy right may draw on Article other than those referred to above and the Bench must not foreclose future development of privacy right. Justice Nariman suggested that privacy may be located in Article 21 with cross-fertilization from other Articles of the constitution.
The Bench had the last word and requested petitioners to lay down the scope of the privacy right against State action in further hearings.
(Mr. Arvind Datar, Sr. Advocate appeared for the Petitioners in Transfer Case No. 151/2013, S. Raju v. State of Tamil Nadu, which has been tagged with this matter.)