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Right to privacy cannot be an absolute right and the State may have some power to put reasonable restriction, the Supreme Court said today while examining the issue whether it can be declared as a fundamental right under the Constitution. A nine-judge Constitution bench, headed by Chief Justice JS Khehar, also asked the Centre and others to assist it about the “contours” and ambit of test on which the width and scope of right to privacy and its infringement, if any, by the State would be tested. The bench then referred to the apex court judgement, criminalising gay sex and said if right to privacy was construed in its widest sense, then the verdict in the Naz Foundation case “would become vulnerable”. The NGO, Naz Foundation, has been fighting a legal battle for decriminalising consensual unnatural sex including lesbians, gays, bisexuals and transgenders. During the day-long hearing, the bench, also comprising Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer, said, “Right to privacy is an amorphous right and not absolute. It is only a small sub-sect of liberty.” [caption id=“attachment_3832825” align=“alignleft” width=“380”]  Supreme Court. Reuters[/caption] It then gave illustrations including that giving birth to offsprings might fall under right to privacy and the parents could not say that the government did not have the power to direct sending every child to schools. It also referred to issue of data protection and said that its ambit was “much wider” than right to privacy and “cataloguing the contents of privacy” has the danger of limiting the right itself. “We live in an age of big data and the state is entitled to regulate the data whether it is for the purpose of regulating crime, taxation or other activities… Right to privacy cannot be so absolute that it prevents the State from legislating or regulating it,” the bench said. If a bank has sought personal details for disbursing loans then it could not be said to be an infringement of right to privacy, it said, adding that the issues like one’s sexual orientation and the bedroom details were covered under right to privacy. Senior advocate Gopal Subramanium, appearing for one of the petitioners, initiated the arguments and said right to privacy was an “inalienable” and “inherent” to the most important fundamental right which the right to liberty. He said the right to liberty, which also included right to privacy, was a pre-existing “natural right” which the Constitution acknowledged and guaranteed to the citizens in case of infringements by the State. “Liberty is the fundamental value of our Constitution. Life and liberty are natural existing rights which our Constitution acknowledges and guarantees. How can liberty be at all experienced without privacy?,” he asked. Subramanium, at the outset, referred to apex court verdicts to highlight the process of interpretation of fundamental rights by it and assailed the two judgements delivered in M P Sharma and Kharak Singh cases by an eight-judge and six judge benches in 1954 and 1963 respectively in which it was held that right to privacy was not a fundamental right. The issue of right to privacy as a fundamental right was deliberated upon by the court in the two cases. “It is submitted that the decision in the 1954 and 1963 cases, to the extent they interpret fundamental rights on a distinctive basis (as recognised in the A K Gopalan case of 1950) are no longer good law. “In view of the fact that the A K Gopalan case stands overruled in the R C Cooper case (of 1970), it follows a fortiori (from a stronger argument) that neither of the above decisions are effective.” He assailed the M P Sharma verdict which had held that right to privacy was not a fundamental right, saying that the MP Sharma case was not “an authority for the proposition that there is no fundamental right to privacy in the Constitution”. He argued that right to privacy is inherent to the right to liberty and the Constitution “mediates” between the citizens and the State and the concept of privacy is “embedded in liberty as well as honour of a person”. He then referred to the Preamble and Article 14 (equality before law), 19 (freedom of speech and expression) and 21 (protection of life and liberty) of the Constitution to contend that right to privacy was intrinsic to these “inalienable” fundamental rights also. The counsel assailed the contention of Attorney General KK Venugopal that right to privacy was a “common law right” and not the fundamental one and said it “went much beyond the common law” as it was inherently attached to the basic rights of life and liberty. “Right to privacy invariably means the inviolability of the person. The expression ‘person’ includes the body as well as the inviolate personality and the privacy really is intended to indicate the realm of inviolable sanctuary that most of us sense in our beings. “It refers to spatial sanctity, freedom in decisional autonomy, informational privacy as well as the ability to freely develop one’s personality and exercise discretion and judgement,” he said. Former Attorney General Soli Sorabjee, appearing in support of privacy right, went much beyond and said even if the Constitution did not “explicitly” provide this right, it could be deduced as had been done in the case of freedom of press. He referred to Article 19 and said it dealt with the freedom of speech and expression and the apex court deduced the media right from it. Another senior advocate Shyam Divan also said privacy right was a fundamental right according to the “golden triangle” rule that comprised Article 14, 19 and 21. “As recognised by an unbroken line of decisions of this court since 1975, right to privacy is protected under Part III of the Constitution. This court has recognised several unenumerated rights as facets of Article 21. “Similarly, right to privacy has also been recognised as flowing from Article 21,” he said. He said that right to privacy extends to several aspects, including body integrity, personal autonomy, right to be left alone, informational self-determination and protection from State surveillance. The bench, at one point, stopped Divan from raising issues relating to Aadhaar that that government could not force citizens to give biometric details and asked him to focus on the privacy issue alone. When the bench asked whether privacy right could be absolute and the government could put some restriction or not, he said that the aspect of privacy might be determined on a case-to-case basis. “In a technologically dynamic society it is imperative to keep dimensions of right to privacy flexible to adapt and adjust with the new scenarios,” he said, adding many of the fundamental rights “cannot be enjoyed to the fullest in the absence of right to privacy”. He further referred to the fact that India is a signatory to the Universal Declaration on Human Rights and now to say that right to privacy is a common law right only will be a “regressive” step. He said the recognition of “fundamental right to privacy” is consistent with international norms and has been recognised internationally as a human right and is protected in almost all liberal democracies. Another senior advocate Arvind Dutta also submitted that right to privacy should be treated as a fundamental right. The argument will continue tomorrow and that attorney general is likely to put the government’s view across. With inputs from PTI
Right to privacy debate highlights: Supreme Court bench questions petitioners, raises security concerns
The Supreme Court decided to set up a nine-judge bench to decide whether right to privacy can be declared as a fundamental right.
 "Right to privacy debate highlights: Supreme Court bench questions petitioners, raises security concerns")
Lok Sabha passes the Indian Institutes of Information Technology Amendment Bill 2017
Lok Sabha passes The Indian Institutes of Information Technology Amendment Bill 2017
— Lok Sabha TV (@loksabhatv) July 26, 2017
A 9-judge bench hearing related to the Aadhaar card resumes after lunch, Attorney General KK Venugopal resumes submissions
#Aadhaar 9-judge bench hearing. Bench reassembles after lunch. AG KKV resumes his submissions. Thread.
— Prasanna S (@prasanna_s) July 26, 2017
Union of India’s arguments in the right to privacy case in the morning session, so far
Article 21 i.e. protections of life and personal liberty, AK Gopalan’s case and feasibility of the right to privacy being considered a fundamental right discussed.
Thread on the Union of India's arguments in the right to privacy case in the morning session. https://t.co/ZykjIUkhiV
— Gautam Bhatia (@gautambhatia88) July 26, 2017
Updates for 26 July begin
Four non-BJP ruled states, including Karnataka and West Bengal moved the Supreme Court seeking to intervene in the ongoing Right to Privacy hearing
Petitioners conclude arguments in Aadhar hearing, Attorney General KK Venugopal to commence submissions for Centre on Tuesday
any way and let it develop case by case.
— Prasanna S (@prasanna_s) July 20, 2017
Meenakshi Arora, the last counsel for petitioners, takes the Court through the judgement in District Registrar v Canara Bank. She concludes with the privacy of personal information and personal choice.
With Meenakshi Arora’s statement, petitioners have completed their statement in their hearing on Thursday. Meenakshi Arora, the last petitioner, ends by saying, “History teaches us that without privacy, the consequences are unimaginable.”
MA concludes with the privacy of personal information and personal choice.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
MA: The right to privacy can be drawn from Articles 17, 24, and 25 of the Constitution.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Privacy debate continues
The declaration that privacy is a fundamental right itself is the first step towards fulfilling that obligation of oversight on executive
— Prasanna S (@prasanna_s) July 20, 2017
In case you missed it: Right to privacy not absolute, says Supreme Court during Aadhaar hearing
#Aadhaar #hearing: #SupremeCourt says #privacy is not absolute, right is inherent in #Constitution- @MANJULtoons https://t.co/Q7WI7qvrug
— Firstpost (@firstpost) July 19, 2017
Povaya: Declaring privacy as a fundamental right is the first step towards ensuring accountability for coordinate branches of government.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Justice Bobde discusses dark web with petitioner
Justice Bobde asked petitioner over “dark web”, the large unknown part of internet.
Povaya: The darkweb is an aberration.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
There's some discussion about proxy servers and Russia.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Ah okay. Bobde J: This may not be relevant for this case, but we'll need to have answers for future cases.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Litigant calls privacy as a matter of dignity than secrecy
Povaya: Secrecy is not the basis of privacy. Dignity is.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Litigant invokes State’s Orwellian face
Makes a point that the thought of government may be watching itself is enough to cause a speech chill.
— Prasanna S (@prasanna_s) July 20, 2017
Justice DY Chandrachud raises the question of private firms using big data
Chamleshwar adds whether there is an issue of privacy when the State induges in data collection.
DYC J states how AI and Big data has progressed so much towards data explosion .. is it qualitatively different when State collects it?
— Prasanna S (@prasanna_s) July 20, 2017
Supreme Court hearing petitions on privacy in the digital world
Questioning a litigant over the privacy in the digital world, Justice Chamleshwar asked whether the issue of privacy pertains to the collection of data or its use.
Chelameshwar J asks if the problem is of collection of data or its use? Where does the violation occurs.
— Prasanna S (@prasanna_s) July 20, 2017
Hearing concludes for the day, will continue tomorrow
Bench rises. To continue tomorrow.
— Prasanna S (@prasanna_s) July 19, 2017
Justice Rohinton Nariman says court may analyse issue on a case-by-case basis
Rohinton: So, is it that we need to do case by case analysis each time, see what aspect of privacy it is? Counsels and other judges: yes
— Raman Chima (@tame_wildcard) July 19, 2017
Human rights activist and privacy advisor Ancilla on what right to privacy means to India
India has a population of 1.34 billion. If they lose their basic human right to privacy today, it will be a huge set back for the world
— Ancilla *flag here* (@ncilla) July 19, 2017
Shivam Divan, representing the petitioners in the court, on why Right to Privacy is important
Shyam Divan: My body belongs to me, invasions of my bodily integrity can only be allowed under a totalitarian regime. #Myprivacymyright
— Karuna Nundy (@karunanundy) July 19, 2017
What exactly does privacy entail, SC asks
Justice J Chandrachud asked senior advocate Arvind Datar, representing the petitioners, on what privacy entails. Every right to make a decision may not be a part of the right to privacy, the judge said.
Right to Privacy in European law
Europe generally is governed by the Data Protection Directive, which restricts how information can be processed and used. It requires that member states “implement technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access” and to establish judicial remedies for breaches. It also mandates the establishment of a public authority to monitor adherence to the directive.
Was the govt relying on an archaic 1954 judgment to make its point?
What would be the Union's stand on the issue of the existence of a fundamental right before the 9-judge bench of the Supreme Court ? (1/n)
— Prasanna S (@prasanna_s) July 19, 2017
Right to Privacy in the digital age
If in the digital age we do not have a fundamental right to privacy, any statute can be passed, and the citizen will have no recourse.
— Gautam Bhatia (@gautambhatia88) July 19, 2017
Right to Privacy in the US
The Privacy Act, 1974, is meant to protect individuals from unauthorised use of their records by a federal agency. It makes agencies accountable for the records they maintain and requires them to protect the accuracy of records. Agencies must also reveal the purpose for which are collecting information.
To read more, click here
What constitutes a fourth amendment violation?
Discusses the subsequent judgment that held that even a bugging device in a public telephone booth without a warrant is a 4th amndt violatio
— Prasanna S (@prasanna_s) July 19, 2017
Privacy in American, European laws
Justices J Chelameswar says degree of protection higher if it refers to a Constitution Part 3 right. He also further referenced the corresponding acts in American and European law, and its evolution from a common law to a human right.
Fundamental right to privacy a must in digital age: Divan
If in the digital age we do not have a fundamental right to privacy, any statute can be passed, and the citizen will have no recourse.
— Gautam Bhatia (@gautambhatia88) July 19, 2017
Privacy is an internationally recognised human right: Shyam Divan
CJI: The report says that privacy is a basic human right in international law.
— Gautam Bhatia (@gautambhatia88) July 19, 2017
SD: Yes. It is an internationally recognized human right.
Arguments to continue at 2 pm
Right to privacy: Gopal Subramanium, Soli Sorabjee, Shyam Divan appear for petitioner; Arguments to continue at 2 pm.
— Bar and Bench (@barandbench) July 19, 2017
Right to privacy hearing will impact much more than Aadhaar
“The consequences are huge,” said constitutional scholar Menaka Guruswamy.
“This goes far beyond Aadhaar. The ruling will decide the manner in which constitutional democracy will endure.”
“If the court rules for the government, then it’s going to impact all kinds of footprints of citizens, both professionally, and in their private lives,” Guruswamy said.
“It will impact my right to my body, to what I do at home, my communications, and everything else.” — Reuters
Right to privacy is sacred; Govt must salvage UID scheme
Why is privacy such a big debate, especially in context of Aadhaar? Since the time of enrolling, a citizen offers his biometric data, address and a brief personal profile to the government. The fear, as highlighted by the privacy rights activists, is that the deep state will misuse this data to hunt down people they don’t like. That explains a number of pleas in the court to restrict the use of Aaadhar as a voluntary option and have stronger framework to protect the citizens from privacy invasions by the deep state.
Read the full article here .
Senior advocate Gopal Subramanium initiated the hearing before the bench headed by Chief Justice JS Khehar saying that the rights to life and liberty are pre-existing natural rights.
The nine-judge bench also comprises Justices J Chelameswar, SA Bobde, RK Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.
The bench is dealing with the limited issue of right to privacy and matters challenging the Aadhaar scheme would be referred back to a smaller bench.
There are some preambular values which are to be read with fundamental rights, Subramanium said.
The preamble has multiplicity of expressions which include some from American Constitution and some from continental countries, he added.
“Liberty is the fundamental value of our Constitution. Life and liberty are natural existing rights which our Constitution has. Now can liberty be at all experienced without privacy. Can liberty be exercised without privacy at least with regard to all the Fundamental Rights of the Constitution,” he said.
The hearing is in progress. — PTI
GS: Article 21 makes the dignity of a citizen enforceable against the State. This means all the shades of dignity including privacy
— Gautam Bhatia (@gautambhatia88) July 19, 2017
There is a certain meaning to the qualification ‘fundamental’: Gopal Subramaniam
GS: There is a certain meaning to the qualification "fundamental" in part 3 rights. These are paramount.
— Prasanna S (@prasanna_s) July 19, 2017
Who says you can’t have fun during a Supreme Court hearing?
LiveLaw had reported that during the earlier hearing by the five-judge bench, Chief Justice of India JS Khehar had asked Attorney General KK Venugopal a question which made everyone crack up.
While discussing the Maneka Gandhi case, the CJI asked the attorney general how he could disagree with his father MK Nambiar. Venugopal must really have not seen that coming.
Gopal Subramaniam talks about four aspects of privacy
GS : there are four aspects of privacy - spatial , decisional, informational, and the right to develop your personality.
— Gautam Bhatia (@gautambhatia88) July 19, 2017
‘Recognise what is already there’
GS : I am not saying, "expand Article 21." I am only saying, "recognise what is already there."
— Gautam Bhatia (@gautambhatia88) July 19, 2017
Privacy is the essence of liberty: Gopal Subramaniam tells SC
GS : Privacy is not a penumbral right, or a right in the shade of other rights. Privacy is the essence of liberty.
— Gautam Bhatia (@gautambhatia88) July 19, 2017
Can your right over personal data be negotiated?
Life as we know is something more than one’s mere survival and existence; therefore, the right to privacy is an inherent right to every citizen of the country. As things stand today, where the Government of India is taking a stand that the right to privacy is not a fundamental right and at the same time the government is promoting digitalisation, enacting policies and regulations permitting surveillance in cyberspace, telephones, email, personal messages etc through multiple agencies under the grab of national security, implementing national programmes like Unique Identification Number etc, it is imperative for India to enact stringent privacy laws.
Read the full article here .
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