As a nine-judge bench of the Supreme Court began hearing the question of whether privacy is a fundamental right, counsels for the petitioners argued against reading the Constitution narrowly and textually to deny Indians a right to privacy.
Starting off the arguments, senior counsel Gopal Subramaniam said that privacy was an inalienable component of liberty. Pointing to the right to freedom of speech and expression encoded in Article 19, for instance, Subramaniam pointed out that before one could express a thought freely, one had to have the private, internal space in which that thought could be formed.
â€śThe right to liberty means the right to make personal choices, the right to develop oneâ€™s personality, oneâ€™s aura, oneâ€™s thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe. For all this, one needs privacy. So, the right to liberty and lead a life of dignity includes the right to privacy,â€ť he argued.
Taking up the argument next, Soli Sorabjee argued that just because the right to privacy was not mentioned explicitly in the Constitution, this could not be taken to mean that the right did not exist. Giving the example of freedom of press, he pointed out this freedom was deduced from the freedom of speech and expression, and the right to privacy could be similarly deduced.
Counsel Shyam Divan then pointed out that there was an unbroken history of 40 years of legislation affirming the right to privacy in Indian courts, and urged the bench to explicitly recognise that history rather than regress back from it.
Specifically linking the question of privacy back to the main appeals against Aadhaar, Divan argued, â€śCan you compel an individual to give up their information? We say that violates the right to privacy.â€ť He added that a personâ€™s body can belong to the state only within a totalitarian regime.
Divan also argued that over the years, the SC had articulated over 30 unenumerated rights â€“ rights not explicitly laid down in the Constitution. Hence the SC should also affirm the right to privacy. He urged the court to explicitly lay down that the right to privacy was a part of the fundamental rights so that the superior protections accorded to fundamental rights from adverse legislation would apply to privacy too.
Finally, advocate Arvind Datar told the bench that in both the cases of MP Sharma and Kharak Singh â€“ which had been used by government counsels to argue that privacy was not a fundamental right â€“ the status of the right to privacy had not been the central question. Hence, he argued, they only had â€śstrayâ€ť statements on the right.
â€śThey (Central government) are taking one line from MP Sharma and one line from Kharak Singh and arguing there is no Right to Privacy and that is the law of the land,â€ť he asserted.
Hearing the arguments of the petitioners, what seemed to concern the SC bench most were how to define the contours and limits of the right to privacy. In particular, Justice Chandrachud stated that privacy could not be affirmed as a blanket right, as this would undermine the SCâ€™s own judgement in the Naz Foundation case. In that case, the SC had set aside the Delhi High Courtâ€™s verdict decriminalising Section 377 of the IPC. In this case it had been argued that Section 377 was selectively intrusive into the privacy of certain persons based only on their sexual orientation.
â€śHow do we define privacy? What are its contents? Its contours? How can the State regulate privacy? What obligations do the State have to protect a personâ€™s privacy?â€ť asked Justice Chandrachud.
Even as the bench looked toward the problem of how to define the limits of the right to privacy, the counsels urged that privacy not be restricted to any one right, and be given room for broad reading since it pervaded many enumerated rights.
The verdict of the nine-judge bench will be crucial to the fate of the Aadhaar project currently being pushed on a massive scale by the Central government, which is making Aadhaar the mandatory identification for a multitude of services and processes. This push has been challenged by a number of petitioners on the grounds that it violates the privacy of citizens, and those challenges are being heard by a five-judge Constitutional bench of the Supreme Court.