Day 6 Arguments (Gopal Subramanium)

Fundamental Right to Privacy

The 9 Judge Bench hearing on the Right to Privacy reserved the case for judgment on 02.07.2017.

The concluding arguments of the respondents were followed by the rejoinder arguments on behalf of the petitioners.

Mr Gopal Subramanium:

The decisions in the United States need not be referred to for understanding the position of fundamental rights in the Indian Constitution. The freedoms guaranteed under the Constitution should not be narrowly read. The source of embodiment of the privacy right is Justice Subba Rao’s dissenting opinion in Kharak Singh  State of Uttar Pradesh (1962). Subsequent decisions in Kesavananda Bharati v State of Kerala (1973) and  ADM Jabalpur v SS Shukla(1976) have strengthened the protection offered to fundamental freedoms, and the courts have further upheld the inalienability of fundamental rights in Maneka Gandhi v Union of India (1978) and Minerva Mills v Union of India (1980).  Further, Mr. Subramanium referred to the violation of fundamental freedoms and the denial of access to courts in the emergency era, stating that there was no such declaration in the present day, yet the State was arguing for a denial of privacy and liberty. Privacy, liberty, and freedom are all intertwined and it was the spirit of the individual that was at the core of this case. A disjunctive reading of life and liberty as proposed by the State would be an attack on the “selfdom” of an individual. In conclusion he referred to Justice Bhagwati’s contributions to the African constitution and stated that the same explicitly guaranteed a privacy right under Article 14.

Mr. Kapil Sibal:

Privacy is the golden thread than runs through personal liberty and there can be no liberty without privacy. Justice Chandrachud questioned why there was a need to enumerate a constitutional privacy right if the same could be read into the Constitution as a subset of liberty. Mr. Sibal argued that it was not a subset of liberty, which would mean it was inferior. Technological development had led to an increasingly invasive State, which mandated that the protection offered to constitutional freedoms also be enhanced. Justice Chandrachud further pointed out that technological advancements had also compelled the State to adopt procedures like surveillance to ensure greater protection of liberty and it was not only the State, but also private entities that were invasive. To conclude, Mr. Sibal argued that the privacy right of an individual, so integral to his personality, must be protected against State action by declaring it as a fundamental right, and against private entities by enacting data protection laws.

Mr. Shyam Divan:

The privacy of an individual was the core of personal identity and freedom and given the structure of governance, a privacy right must be recognised in the Constitution. Privacy entailed a bundle of rights with overlapping facets of bodily integrity, informational privacy, and personal autonomy among others. The State offered statutory and common law protection to the privacy right of an individual, however there was a need for constitutional protection that offered adequate protection. The court must limit itself to the correctness of the decisions in M.P. Shrama v Satish Chandra (1954) and Kharak Singh, and whether or not privacy dwelt in Part III of the Constitution, without deliberating on the broader aspects.

(Mr. Gopal Subramaniam appeared for the Petitioner in W.P. (c) No. 37 of 2015, Col. Mathew Thomas v Union of India and Ors. which has been tagged with this matter).

(Mr. Kapil Sibal appeared for the states of KarnatakaWest BengalPunjab & Puducherry).

(Mr. Shyam Divan appeared for the Petitioners in W. P. (Civil) No. 829 of 2013, S. G. Vombatkere v Union of India , which has been tagged with this matter).

(This post relies on contributions from Ms. Nidhi Khanna)