August 1, 2017

“Even justified matter of invasion is still an invasion”

Senior Advocate Aryama Sundaram

• Aryama Sundaram submitted before the 9 judge Bench of Supreme Court headed by CJI J.S Khehar that,“Parliament was empowered to include right to privacy as a fundamental right and it was not the job of the Supreme Court”.
• He further added that, “Constitutional amendment is required for it and only Parliament can do it. It cannot be done through an interpretation”.
• To this Justice Nariman stated that,” The UN Declaration of Human Rights,1948 to which India is a signatory, has expressly recognised the privacy as an inalienable right and this Constitutional Bench just had to read it in”.
• Mr Sundaram in his response stated that,” Yes it can be read in only if there is scope for the interpretation. But I submit that there is no room for the interpretation but only a Constitutional Amendment”.
• He further submitted that,” Your Lordships talk about how we have to change according to the times but when framers of the Constitution had rejected something the intent was clear”.
• He added that, “Privacy is largely is my right not to be intruded into my personal and private space, these are right to liberty. All these are already protected. I share what I want to share, nobody can force me to share with a person I don’t want to share with”.
• Aryama Sundaram said that,” Even justified matter of invasion is still an invasion. Right to Privacy need to be governed and protected statutorily and it cannot be a Fundamental Right”.
• Thus he concluded that,” Privacy not an absolute right. Any facet of privacy cannot be protected as a fundamental right”

“Every holder of information must disclose the purpose for which information is used”- Justice Chandrachud

Additional Solicitor General Tushar Mehta

• ASG Tushar Mehta submitted that,” It is believed by the Scholars unanimously that Privacy cannot be defined, it is too subjective”.
• Justice Bobde questioned him that,” What according to you qualifies a Right to become a Fundamental Right?”
• To this ASG Mehta replied that,” It must fall within one of the Fundamental Rights, Factors that weigh in making it a Fundamental Right, the attributes will be decided by the Parliament”.
• Justice Nariman expounded that, “Constitution must be interpreted according to the time. It is a living document. The Principle of Personal Liberty has to be looked into. The words must lead to Principles.”
• ASG Tushar Mehta stated that,” Singapore Supreme Court has not raised Right to Privacy to a Fundamental Right”.
• He further added that,“ Government has constituted a Expert Committee under Justice BN Srikrishna to identify key data protection issues, provide solution for them, Thus for overall data protection regime and suggest a draft of Data Protection Bill. This basically shows that Government is cognizant to the needs of data protection”
• Justice Nariman expounded that,” We can hold Right to Privacy as Fundamental Right and uphold Aadhaar Scheme. There can be no automatic conclusion that upholding of Right to Privacy as a Fundamental Right will lead to declaration of Aadhaar Scheme as unconstitutional”.
• To this ASG Mehta submitted that,” There are several acts which statutorily incorporate Aadhaar. Thus Right to Privacy should not be raised to status of Fundamental Right”.
• He added that,” Technology should be used for benefit for the poorest of poor. If there is any invasion, Statute should take care of it.”

Senior Advocate Rakesh Dwivedi appearing on behalf of State of Gujarat

• He submitted before Apex Court that, “Privacy is relative and contextual concept”.
• He added that, “Privacy in generality not present in Article 21 of Constitution, but certain claims for privacy before Court under Article 21, falling under general expectations of society may become part of Article 21”.
• Justice Chandrachud questioned Senior Advocate that,” How much autonomy does individual has with respect to his Right of Choice?”
• To the Mr. Rakesh Dwivedi replied that, “Autonomy is already enshrined under Article 21 of the Constitution, Choice making is inherent in it, Right to choose is not part of privacy. Privacy is not required for right of choice.”
• He further added that, “Decisional Authority and Right of Choice is inherent in Article 21. There is right to choose to live in Complete/Partial/No Privacy”.
• Justice Chandrachud enunciated that, “ When you are applying the rule to 1.4 Billion people, you have to apply a general rule. Every holder of information must disclose the purpose for which information is used”.

Source - PTI