Is Privacy A Fundamental Right in India?


 

8th Aug 2017

Is Privacy A Fundamental Right in India?

 

 

  1. Background

In India, there has really been no clarity on whether Privacy is a fundamental right or not. With personal data in the hands of the government/ private entities becoming a critical aspect for individuals – especially with various diktats around Aadhaar – this question needed to be settled once and for all. An unprecedented 9-Judge bench was constituted by the Hon’ble Supreme Court of India to decide on this matter. The proceedings of the court took place over the last three weeks and the final judgement is expected before the end of August, 2017.

This note gives an overview of the background, the proceedings at the court, and the implications of privacy being a fundamental right or not.

 

  1. What led to the Supreme Court proceedings?

Petitions in the Supreme Court:

With the increasing ‘compulsion’ around the usage of Aadhaar for various activities, the debate around privacy escalated in the recent past. Even before the Aadhaar Act[i] was passed in march 2016, there were several petitions[ii] in the Supreme Court challenging it. After the passing of the Act and its associated rules (passed in Sept 2016), fresh petitions[iii] were filed.

The Government’s Stance:

While arguing on behalf of the government, the Attorney General, Mukul Rohtagi, submitted that in view of prior judgements[iv] of the Supreme Court, the legal position regarding the existence of the fundamental right to privacy is doubtful. This was in August 2015.

What the Supreme Court did:

A 3-Judge bench of the Supreme court, at that time, passed an order that a special bench of ‘appropriate strength’ be constituted by the Chief Justice of India to scrutinize the earlier judgements and to decide once and for all on this matter.

Consequently, a 5-Judge bench[v]  was set up on 18th July 2017. This bench decided the very same day that a 9-Judge bench needs to be constituted to determine whether the right to privacy is a fundamental right under the Constitution of India. Rest of the issues associated with the Aadhaar scheme would be decided by the smaller 5-Judge bench at a later stage.

The very next day, on 19th July 2017, a 9-Judge Constitutional Bench[vi] began hearing petitioners arguments to determine whether right to privacy is a fundamental right under the Constitution of India.

 

  1. Significance of the size of a bench

Why a 9-Judge bench?

Since the case involves an interpretation of the Constitution of India, i.e. whether the right to privacy is a fundamental right or not, the bench had to consist of at least 5 Judges[vii]. The Supreme Court, in practice, holds the decision of a larger bench to have an overriding effect on the decision of a smaller bench. Since the earlier two judgements in existence on the right to privacy were decided by a 6-Judge bench [Kharak Singh v. State of Uttar Pradesh (1964) SCR (1) 332)] and an 8-Judge bench [M P Sharma & Others vs Satish Chandra, District Magistrate, Delhi & Others], a constitutional bench of 9-Judges was required to be established to make this decision an authority on the existence of the right to privacy under the constitution.

 

 

 

Why is a 9-Judge bench of such critical significance in the history of independent India?

 Most matters before the Hon’ble Supreme Court are heard by a division bench consisting of 2-3 Judges. For example, the critical Ayodhya Judgement was delivered by a 3-Judge bench.  Setting up of a constitutional bench, that too a 9-Judge Bench,  is a very rare occurrence.

 

  1. What is the implication of whether Privacy is a fundamental right or not?

Part III of the Constitution of India lists the fundamental rights of citizens and residents. According to Article 13(2) the state ‘shall not make any law which takes away or abridges the rights conferred by this Part’.

In simplistic terms, this means that if Privacy is declared to be a fundamental right, then no government can pass any law that compromises that right in any way.

What if it is not a fundamental right? Does that mean ‘all is lost’?

Not really.

One can reasonably anticipate that, given the current reality of personal data, surveillance, etc, the government(s) of the day would pass suitable laws to protect the privacy of its citizens and residents. The present government has  taken some steps forward in this regard. However, the government(s) – current and in future - can easily pass a law that subverts certain aspects of privacy (which, of course, can be challenged in the court – but that is a different trajectory altogether).

Why is this decision a complex one?

The Hon’ble Supreme Court has the task of not only determining whether the Right to Privacy is a fundamental right or not but also to determine the contours of the Right to Privacy if its existence as a fundamental right is established. A narrow scope of application of the right may negate the very purpose of the right. It may allow the opportunity to deal with the privacy challenges of today but fail to safeguard against inevitable challenges that come hand in hand with rapid technological advancements. 

 

Would India be unique if this were to happen?

No.

For eg, in the United States, Privacy is not an explicitly -mentioned fundamental right.

On the other hand, in Europe, Privacy IS a fundamental right. Same goes for countries like China, Brazil, Bhutan and even Pakistan.

 

  1. What were the key arguments presented to the Supreme Court?

Given how critical this matter is, some of the finest legal luminaries of India were involved from both sides of the table. Irrespective of what the final judgement is, it was a sheer pleasure to listen to the arguments and submissions made by these top lawyers. We present below excerpts from the submissions made:

By the Advocates for the petitioners:

  1. Gopal Subramaniam
  1. Soli Sorabjee
  1. Shyam Divan
  1. Arvind Datar

 

By the Advocates for the government[ix]:

  1. Kapil Sibal

 

  1. KK Venugopal

 

  1. Aryaman Sundaram

 

  1. Additional Solicitor General Tushar Mehta

 

  1. Rakesh Dwivedi 

 

  1.  Gopal Sankaranarayana

 

  1. Argya Sengupta

 

  1. When is the final judgement expected?

The final judgement in the matter is expected to come out sometime at the end of this month (Aug 2017)

*Shivangi Nadkarni @shivanginadkarn is Co-Founder & CEO and Anand Krishnan @krishnan92anand is Associate Consultant at Arrka Consulting.

Do write in to privacy@arrka.com for your comments & feedback

 

References

 

 

[i] Formal Name of the Act is Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016

[ii] Tagged together under the case of K.S. Puttaswamy & Others (Ors). v. Union of India & Ors.

[iii] S.G. Vombatkere and Anr. v. Union of India & Ors.

[iv] M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively)

[v] Consisting of Chief Justice of India J.S. Khehar, Justice Chelameswar, Justice S.A. Bobde, Justice Chandrachud and Justice Abdul Nazeer

 

[vi] Consisting of CJI Khehar, Justice J. Chelamsewar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice S. Abdul Nazeer

[vii] As per Article 145(3), Constitution of India.

[viii] Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2) 621, The court held that the right to travel and go outside the country is included in the right to personal liberty guaranteed under Article 21. Section 10(3) (c) of the Passport Act is not violative of Article 21 as it is implied in the provision that the principles of natural justice would be applicable in the exercise of the power of impounding a passport.

[ix] Kapil Sibal, States of Karnataka, Punjab, West Bengal, Himachal Pradesh and Puducherry,  Arghya Sengupta, appearing for the state of Haryana and TRAI, Gopal Sankaranarayanan for the Centre for Civil Society, Attorney General KK Venugopal, Union of India, Senior Advocate Aryama Sundaram, State of Maharashtra, Senior Advocate Rakesh Dwivedi, State of Gujarat, Additional Solicitor General Tushar Mehta For UIDAI.

[x] The Constituent Assembly, consisting of indirectly elected representatives, was established to draft a constitution for India (including the now-separate countries of Pakistan and Bangladesh)