SC verdict on right to privacy expected today: Arguments favouring privacy are strong, but outcome is uncertain

Editor's Note: The nine-judge bench of the Supreme Court will give its verdict regarding the debate on the Right to Privacy on Thursday. The ramifications of the judgment given will not be limited to the Aadhaar or the WhatsApp case, but will impact all future legislation and adjudication on the right to privacy for years to come.

There may be an amorphous concept of privacy

At this stage, predicting the outcome of the case is not possible. At present, the arguments of the petitioners, i.e., in favour of a fundamental right to privacy, have concluded. The counsels for the petitioners, who include top legal eagles like Gopal Subramanium, Soli Sorabjee and Shyam Divan, have made a strong argument in favour of privacy. So far, the apex court appears to be in agreement that there exists an 'amorphous' or undefined concept of privacy in the fundamental rights.

The Supreme Court appears to support a case by case development of the counters of this right. However, a solid counter to these arguments can be expected from the State. The final outcome could therefore be anything.

Kharak Singh and MP Sharma cases as bad law

File image of Supreme Court. AFP

File image of Supreme Court. AFP

The main reason for the reference of this case to a 9-judge bench are the conflicting cases of Kharak Singh and MP Sharma, both six and eight-judge judgments which denied the right to privacy, and numerous judgments that followed which recognised it. There are over 40 Indian judgments today which recognise the right to privacy, but unfortunately these are given by benches of a lower strength. Thus a lot banks on the Supreme Court's decision on whether the Kharak Singh and MP Sharma cases are good law.

The counsels for the petitioner have made strong arguments that they are not, particularly focusing on the fact that neither of these cases dealt specifically with the right to privacy as a facet of Article 21. The MP Sharma case referred mainly to search and seizure under Article 20(3), while the Kharak Singh case in fact supported privacy by striking down surveillance through domiciliary visits at night against history sheeters. Also, these judgments were passed in the 1950s and 1960s, long before the digital age in which we live today.

International recognition to privacy

The recognition of the right to privacy internationally, through the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights, to which India is a signatory, was pointed to. Landmark American cases recognising the right to privacy as a part of the 4th and 5th amendment were also referred to. The cases discussed included the recognition of the right to privacy of one's home and residence, the freedom from arbitrary searches and seizures, the privacy of personal data, freedom from surveillance and the privacy of personal choice. The counsels, in fact, pointed to the irony of having a discussion on the right to privacy in 2017.

There can be no liberty without privacy

A strong argument was made by the counsels for the link between liberty and privacy. Liberty is a guaranteed fundamental right, for instance under Article 21 which guarantees the right to life and 'liberty'.

The counsels argued that privacy was inalienable from liberty, and without privacy there can be no true liberty. For example, when a person is aware that the State can watch him or monitor his data, this will have a chilling effect on his actions and his movements. Digital surveillance definitely creates a restrictive psychological impact on the minds of the people. The Court, however, observed that privacy is only a small subset of liberty.

Is a common law right to privacy inadequate?

The bench raised an issue on whether a common law right to privacy was inadequate or narrower than a constitutional right. The counsels for the petitioners agreed, pointing to Article 13(2) which prevented the state from enacting laws which violated fundamental rights. They further pointed to the fact that a common law right to privacy was not recognised under English common law, which India follows, but only under American common law. Thus cases cannot be brought before an Indian Court on the grounds of the violation of a common law right to privacy.

One concern expressed by the Court here was whether privacy was sought to be classified as a fundamental right due to the lack of a remedy against the state for privacy violations. The petitioners, were asked to look into the parameters for challenge of a state action on the grounds of privacy.

Effect of a fundamental right to privacy on state action

The counsels further argued that it not only as a remedy, but the entire degree of protection granted is higher as a fundamental right. Recognising privacy as a fundamental right will create a change in the relationship between the State and the individual. For example, taxi aggregators in Bombay have to mandatorily hand over their data to the State. Once it is a fundamental right, the state's collection and handling of data will change. As another instance, the state's collection of biometric data for Aadhaar through exercise of executive fiat wouldn't have been possible without first enacting a law which passes the muster of Articles 14, 19 and 21.

The right to privacy sought to be grounded in the Fundamental Rights

During the arguments, the Bench questioned aspects like the definition of the right to privacy, its contours, its boundaries. Given the impact of a judgment of a 9 judge bench, the counsels argued for a grounding of the right to privacy in Part III of the Constitution, as a fundamental right, but this right should be defined and developed on a case by case basis.

While it is tempting to have the bench define once and for all what privacy is, such an approach may foreclose future development of the law. This approach, on the other hand, will leave no debate as to the existence of a fundamental right to privacy, but will allow the right to evolve as needs change with time.

The verdict of a 9 judge bench is very difficult to overrule. The government, on its part, can be expected to put up a stiff fight against privacy. There is a definite risk of the fundamental right to privacy being denied, (almost) once and for all, but there is an equal chance of it being recognised, (almost) once and for all. It is hoped that the latter will become reality.

Sources of the arguments are written submissions of the counsels at Live Law and live coverage of the case on Twitter handles of Prasanna S and SFLC).

Updated Date: Aug 24, 2017 07:08 AM

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