Day 5 Arguments (Rakesh Dwivedi)

Fundamental Right to Privacy

Day 5 of Arguments on 1st August 2017

Mr Rakesh Dwivedi, representing the State of Gujarat, followed Mr Tushar Mehta. He began by sketching out the three constitutional constructs proposed in the arguments so far: i) The Petitioners’ argument that privacy was implied under Article 21 as an element of due process, as per Maneka Gandhi; ii) Mr Sundaram and Mr Mehta’s argument that there was no fundamental right to privacy in any capacity and iii) Mr Dwivedi’s argument that each privacy concern needed to be assessed individually in its context to determine whether it failed reasonable and legitimate expectation under Article 21.

Mr Dwivedi contended that the third argument came from Justice Harlan’s test in Katz v United States. Each petitioner needed to establish that a minimum threshold had been crossed before asking the State to respond. In each situation, the facts would determine the extent of the right to privacy. For example, knowledge of blood group could save lives in a car accident; disclosure of a patient’s HIV status to a potential spouse could be justified, even though it was not subject to disclosure in most cases. Justice Chandrachud noted that privacy rights should be not only seen in context but should also balance concerns. One important concern was the spread of knowledge. Every privacy claim would curtail the spread of information, which could curtail the spread of knowledge and consequently, the spread of innovation. This was especially so in the case of data protection. This balance had to be considered in each case when drawing the line on privacy.

Mr Dwivedi then clarified that he did not consider privacy rights within the ambit of Article 21, but allowed for the possibility that privacy concerns may cross a threshold and become capable of being protected under Article 21. Justice Chandrachud questioned Mr Dwivedi’s views on the extent of individual autonomy, i.e., an individual’s freedom to retreat from disclosure, to which Mr Dwivedi replied that he did not see individual autonomy and the right to choose as a part of privacy. These were already within the ambit of Article 21 and did not need a ladder to climb up to such protection.

Mr Dwivedi sought to continue submissions on the next day.

(Mr Rakesh Dwivedi, Sr. Advocate is appearing for the state of Gujarat in (Writ Petition(Civil) No. 494 of 2012), K.S. Puttaswamy(Retd) & Am. Versus Union of India & Others.)