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Right to Privacy case: Day 7 proceedings before the 9 judge constitution bench

August 2, 2017

Supreme Court

“If I am waking in Connaught Place, I can be strip searched under NDPS Act. As as individual phases out of his intimate private area, the level of privacy changes,” Justice Chandrachud

Senior Advocate Rakesh Dwivedi

  • Senior Advocate Rakesh Dwivedi submitted before the Apex Court Bench that,“ I’am not in favour that Right to Privacy does not at all fall under the Fundamental Rights but only certain facets of Privacy fall under Fundamental Right”.
  • CJI Khehar stated that, “ If there is a procedure established by law to protect Privacy then there is no problem”.
  • To this Mr. Dwivedi stated that, “ The law should be just, fair and reasonable”.
  • Justice Chandrachud said that, “There are three zones of Privacy: Intimate Zone, Private Zone where one shares privacy with others like family and friends. Here the purposive test is to applied where information can be utilized for purpose with which it is supplied, Public Zone where person interacts with public at large. Privacy is limited to body when one is interacting with public, one cannot claim violation of privacy”.
  • Rakesh Dwivedi submitted that, “We are a knowledge based economy, where information is a source of knowledge. Right to privacy should not stifle with innovation based on information”.
  • CJI questioned Rakesh Dwivedi that, “Whether innovation based on information falls under or outside Right to Privacy?
  • To this he replied that, “It falls outside Right to Privacy”.
  • Justice Chandrachud said that, “If I am walking in Connaught Place, I can be strip searched under NDPS Act. As as individual phases out of his intimate private area, the level of privacy changes. If  I use Cab Aggregator and pay using my Credit card, then can I  say that there cannot be aggregation of my app data?”
  • Mr Dwivedi answered that, “When one goes out of intimate zone the level of privacy reduces. Disclosure of sensitive information which calls harm or injury then Right to Privacy must set in. But if such information is not harmful, then institution like Hospital can use this information for research and information purposes”
  • He further added that, “When there is disclosure of basic identity information there will be no claim of Right to Privacy as it is for basic functioning of society.”
  • Rakesh Dwivedi stated a Supreme Court rule that startled the CJI that, “For filing a PIL the Supreme Rules require at the time of filing National Unique Identification number, if any”.
  • To this Justice Chamleshwar replied that, “The Aadhaar card was not mandatory at the time of filing the PIL and was optional”.
  • Mr Dwivedi further added that, “Technology is empowerer of poverty”.
  • Justice Chandrachud questioned Mr. Dwivedi that, “Can Supreme Court give the data of the Advocates email id’s to the legal service providers?”
  • To this, Rakesh Dwivedi replied that, “With basic identification data, there is no privacy”.
  • Justice Chandrachud further added that, “If I give my basic identification data to the Hospital etc. I don’t want them to give the data to the 3rd parties, because I have not given them the Data for giving it out to the 3rd parties”.

Advocate Gopal Shankaranaryanan:        

  • He submitted before the 9 Judge Bench headed by CJI Khehar that, “There are several parts to Right to Privacy, but we cannot define it thus it should not be protected under Part III. Some parts of it are protected under Articles of Constitution”.
  • Gopal further added that, “All these obligations that Privacy imposes upon State, State has to start framing legislations with respect to Privacy, testing existing laws with respect to Privacy.”
  • He stated that, “MP Sharma case and Kharak Singh case have been rightly decided by the Apex Court”.
  • Gopal Shankaranaryanan submitted that, “When we decide whether there is a Fundamental Right, need of time needs to taken into consideration. At present, Privacy or aspects of Privacy need not be declared as Fundamental Right. Only certain aspects of Right to Privacy can be raised to Fundamental Right, all aspects if declared a Fundamental Right will have serious repercussions”.
  • He thus concluded that, “All the principles of UDHR cannot be incorporated into Article 21 and Constitution like Right to Property has been specifically excluded”.

Counsel for State of Haryana and Telecom Reagulatory Authority

  • He submitted that, “The Supreme Court should not uphold a general right as a Fundamental Right”.
  • He stated that conceptually Privacy basically means right to be left alone. Everyone else of to stay off.
  • He further added that, “It is not privacy that is all prevalent in the different constitutional provisions and is prevalent only and only in Liberty. Privilege essentially means Liberty”.
  • Justice Nariman stated that, “Privacy extends over body and mind”.
  • To this the counsel added that, “When a question is asked to a woman that how many children she has? There is no violation of Privacy. But when it is asked that How many abortions she had? This violates her privacy but this will not amount to violation when the same question is asked by a Doctor.

For Petitioners:

 “When Kesavnanda Bharti case was decided the country was under President’s Proclamation of Emergency, at that point of time how can one expect Court to declare Right to Privacy as Fundamental Right?”- Senior Adv. Gopla Subramanium

Senior Advocate Gopal Subramanium

  • He submitted that, “When Kesavnanda Bharti case was decided the country was under President’s Proclamation of Emergency, at that point of time how can one expect Court to declare Right to Privacy as Fundamental Right?”.
  • He further added that, “ In Justice Krishna Iyer’s judgment the words Right to Choice occur which relates to Dignity which in turn is closely related to Privacy.”
  • Gopal further submitted that, “ Justice Bhagwati had drafted South African Constitution which talks about Privacy, wherein Privacy, Dignity and Liberty are interconnected”.
  • Senior Advocate Gopal Subramanium stated that, “The Right to Privacy should apply to Rich and Poor alike there should not be any discrimination”.

Senior Advocate Kapil Sibal

  • He submitted that, “There is enormous difference between Personal Liberty and Right to Privacy. Privacy is golden thread which runs through Personal Liberty.
  • Justice Chandrachud stated that, “Privacy is a subset of liberty”.
  • To Kapil Sibal submitted that, “It is at heart of liberty, it is not a subset”.
  • He added that, “Privacy is a sense of solitude, personal solitude”.
  • Sibal stated that, “Society is always ahead of law. Law is always behind. Its time to recognize Right to Privacy because nature of State has changed, the concept of privacy needs to be protected. Most of the US court cases deal with informational privacy, we are dealing with Right to Privacy under Constitution”.
  • To this Justice Chandrachud stated that, “But Right to Privacy will apply to Informational Privacy also”.
  • Mr Kapil Sibal added that, “All district courts on US apart from Columbia, have recognized Right to Privacy”.

Senior Advocate Anand Grover

  • He submitted that, “Common law Right of Privacy is unknown in India. There is no statutory right, there is only Fundamental Right”.
  • He added that, “Govt. cannot say that give up one right i.e use of Aadhaar in welfare schemes because the govt. is giving another right i.e Right to Privacy.”
  • Anand Grover further submitted that, “In Canadian Charter, Privacy is cited. There is reasonable expectation of privacy.”
  • He added that, “ When one parts with information, it should be used for the purpose with which it is parted. Thus Right to Privacy should be included into Fundamental Rights”.


Senior Advocate Meenakshi Arora

  • She submitted that, “Privacy is a multifaceted principle, it cannot be restricted to principle of liberty”.
  • Ms Arora added that, “It cannot be position of State, I can give you welfare measures, if you give up Right to Privacy. The Courts should stepin in such a situation”.
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