Day 4 Arguments (C.A. Sundaram)

Fundamental Right to Privacy

July 27th 2017

The nine judge bench continued to hear arguments on whether privacy was a fundamental right. On Day 4, Mr. C.A. Sundaram began his arguments by categorically stating that a fundamental right could not be read in ‘bits and pieces’. He relied on Kharak Singh to argue that privacy per se is not a fundamental right and privacy can be protected only if it emanates from other established fundamental rights.


Mr. Sundaram contended that privacy could not be afforded the status of a right as there was no unambiguous understanding of privacy. Referring to the Constituent Assembly debates, he argued that Assembly members wanted the nature of fundamental rights to be exact and not ambiguous. He cited the clear definition of the Right to Speech as a rebuttal to Justice Chemaleswar’s challenge that the Assembly had not been focused on exactitude but on defining the contours of fundamental rights. He contrasted this example and the definition of ‘life’ in Article 21 to the amorphous concept of privacy, to further underscore his argument that privacy could not be declared a right.


Mr Sundaram’s next argument was that privacy could not be injected into a fundamental right and state actions could be tested only against an existing fundamental right. Justice Nariman observed that ‘dignity’ was injected into the Right to Life and was read as a fundamental right to which Mr. Sundaram replied that dignity was just a facet of the right to life. He also pointed out that dignity was mentioned in the Preamble while privacy was not thereby making dignity a natural right but privacy remained a foreign concept. Justice Bodbe interjected that in some life situations like open defecation, dignity cannot be assured without protecting privacy but Mr. Sundaram was not swayed and retorted that privacy is incidental to dignity.


Mr. Sundaram refuted the petitioners’ claim that Kharak Singh by holding domiciliary visits as unconstitutional implicitly recognized the Right to Privacy. He further argued that liberty and privacy were not interchangeable rights to which Justice Nariman responded that the metaphor used in the case of “a man defending his castle” referred to to a person’s Right to Privacy where the “castle” signified  “a person’s right to solitude”, as well as a person’s Right to Liberty. His next argument was that only tangible infringements could define privacy as a fundamental right, as in Kharak Singh where the Right to Liberty was upheld wherein the tangible infringements of domiciliary visits were struck down while the intangible infringements of surveillance were not. Justice Nariman disagreed by stating that Kharak Singh applied to the narrow context of freedom of movement under Art 19(1)(d) not to the broader framework of fundamental rights (Art 21).


Mr. Sundaram argued that privacy could not be a fundamental right because it was a continuously evolving concept and that informational privacy could be protected through regulations and statutes. Justice Chemaleswar pointed out that fundamental rights evolved by default as with the right to press that later became a part of Freedom of Speech. Mr. Sundaram’s next contention was that privacy couldn’t be a fundamental right as it was omitted by the Constituent Assembly members when Justice Nariman reminded him that “due process” under Art 21 was also debated and omitted by the Constitutent Assembly Members but it was later recognised as part of Art 21 in Maneka Gandhi v UOI. With this, the bench rose for the day with Mr. Sundaram scheduled to continue on Day 5.


Mr. Aryama Sundaram appeared for the State of Maharashtra in Justice K.S. Puttaswamy v Union of India (W.P. (C) No. 494/2012).


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