Mr. Kapil Sibal opened arguments on behalf of the respondents on the third day of hearing in Justice K.S. Puttaswamy vs. UOI before a 9 judge Bench of the Supreme Court on 26th July. Mr. Sibal took a pro-privacy stance, arguing that M.P. Sharma and Kharak Singh did not envisage technological advancement and its ramifications on privacy and there is a need for a fresh look at privacy in light of 21st century concerns. He emphasised that the past judgments could not have contemplated the all-pervasive nature of technology so the privacy right has to be made enforceable against non-state actors as well. However, Mr. Sibal submitted that the Privacy is not an absolute right and court has to strike a balance between state interest and individual rights.
At this point, Justice Chelameshwar enquired if the right to privacy is located under Article 21 exclusively or under separate articles or located under Article 21 but manifests under different articles. He said that if it is sourced beyond Article 21, then there would be variable restrictions on the concept of privacy and this makes the test complex. Mr. Sibal responded that the right to privacy is an inalienable natural right and can manifest under other rights; like Article 19 of the Constitution. He gave examples of American, Australian and Canadian Constitutions where there is no express right to privacy but it manifests itself under other rights. Mr Sibal cited US v Jones (2012) that laid down the test of ‘reasonable expectation of privacy’ to buttress his argument. Then, Justice Sanjay Kaul added that in this age of rapidly changing technology, all manifestations of privacy cannot be illustrated currently and will only evolve subsequently. Chief Justice Khehar urged the bench to restrict itself to the status of privacy as a fundamental right and leave the different manifestations of privacy to be dealt with later, on a case by case basis. Mr Sibal concluded his arguments by emphasizing the need for a robust data protection law in India and stressing that the fundamental right to privacy forms the basis of a data protection law.
(Mr. Kapil Sibal appeared for the states of Karnataka, West Bengal, Punjab, Puducherry)