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.
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)
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.
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.
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.
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
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.
Even press freedom is not mentioned in Constitution but implied under freedom of speech: SC had said
"Even freedom of press is not explicit in the constitution but courts have interpreted right to free speech includes freedom of expression of press," NDTV had quoted one of the judges in the Supreme Court as saying.
Chelameswar J: Are you saying that life and liberty are inalienable beyond the text of the Constitution? ADM Jabalpur observed the contrary
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."
Supreme Court. Reuters
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.