Right to Privacy case: Highlights of Day 5 Proceedings before the 9 Judge Bench

July 27,2017

Justice Chandrachud expounded that,”I have no problem with giving my number to State because I’m not a criminal. But there should be a robust mechanism to protect the information”.

Attorney General K.K Venugopal

• AG Venugopal submitted before the 9 Judge Supreme Court Bench headed by CJI Khehar that on basis of judgments of Smaller Bench of the Apex Court Right to Privacy can be traced to Right to Liberty. Thus if something is falling under Personal Liberty it is a qualified right.
• He further added that Right to Privacy cannot be held to deprive people of other rights that are held to be Fundamental Rights by the Court.
• Thus there is No Absolute Fundamental Right to Privacy. Right to Privacy is a multi-faceted right and every facet will not automatically and ipso facto be a Fundamental Right.
• He further added that Eligibility of a facet to be a fundamental right depends on the basis of its character.
• Attorney General relied on a US Supreme Court Judgment that upholded Right to Informational Privacy.
• To this Justice Chandrachud expounded that, “Informational Privacy can never be part of Constitutionally protected privacy. Some data of individual may fall for protection under the Constitution. Some data of pertaining to individual is Public. We need to find a principle to sort the data to which the concept of will apply. Whether the legitimate or compelling State interest which should be used? Is there is compelling State interest, Is there any principle that would decide, How data is used?
• To this Attorney General replied that,”Aadhaar becomes acceptable to all is the State legitimate interest”.
• AG submitted that Right to Privacy cannot be protected because information is already public.
• To this Justice Nariman and Justice Chandrachud questioned the AG that,”If the data is public, How is protection of data secured?
• AG Venugopal cited Section 29 of the RTI Act that provides for authority which is entrusted to secure data and ensure the confidentiality.
• Justice Chandrachud stated that,”Government has data of millions of mobile numbers which is vital commercial interest.
• You should have robust mechanism for protection of information so that it is not used by the other service providers.
• AG further submitted that as per the Aadhaar Regulation user can withhold the information.
• To this submission Justice Nariman responded that the regulation provides for protection of Privacy, it means that Government recognises Right to Privacy.

Senior Advocate Aryama Sundaram

• Basic question is whether the Privacy is a Fundamental Right. This will necessarily mean we will have to read in all the aspects of the privacy. Thus submission by Petitioner that certain facets of privacy is fundamental right while the others may not be, would mean that Genus of privacy cannot be conferred status of Fundamental Right. Thus Privacy cannot be injected into Fundamental Rights
• Justice Nariman stated that, “Dignity is cardinal value of Constitution, it can be injected into the Fundamental Rights. Then why not Privacy?”
• To this Mr Sundaram replied that Privacy is not provided for in the Preamble thus it cannot be injected into Part III of Constitution.
• Justice Bobde added that,” There cannot be dignity unless there is Privacy”
• Sundaram stated that Privacy means Right to be left alone. Free from intrusion from one’s private life.
• Aryama Sundaram submitted that Privacy is not a fundamental right. There can be rights whose violation may be considered as violation of a stated fundamental right. That right may also be violation of privacy but that would not make privacy a Fundamental Right.
• He further added that Privacy is not tangible it is just a concept which can be a Common Law Right, Statutory Right and Constitutional Right but not a Fundamental Right.
• Mr Sundaram submitted that Privacy varies from person to person and whole concept of Privacy cannot be declared as the Fundamental Right.
• While citing the minutes of Constituent Assembly meetings he stated that The Inclusion of term Privacy was dropped by the Constituent Assembly after due consideration and deliberation. Today if it is taken into consideration this fact has to be considered.