Right to Privacy Hearing: 12-Point cheat sheet

The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017. Here is a 12-point cheat sheet to the arguments advanced by the Petitioners:

  1. Senior Advocate Gopal Subaranium: Rights under Articles 14,19, 21 & 25 have an element of personal choice i.e. privacy. Privacy is not only a fundamental right, but an inalienable one.
  2. Senior Advocate Shyam Divan: Right to privacy is a global concern of the day. In a digital age, the dangers of not reading the right as a Part III of the Constitution right may be aggravated.
  3. Senior Advocate Arvind Datar: The proposition that privacy is not guaranteed under Constitution is not the law laid down by the MP Sharma & Kharak Singh cases.
  4. DY Chandrachud, J: If we just hold privacy is a right, Naz judgment may become vulnerable. (Also read, how this decision might affect the LGBT community)
  5. Senior Advocate Anand Grover: Please do not define privacy as it needs to be defined on case to case basis. You may, however, indicate the facets of privacy.
  6. DY Chandrachud, J: If a Government has a digitalized list of convicted criminals for its algorithmic analytics predictive models, etc it may not be a violation because state may have a legitimate interest. But it may be a violation if a whole segment of a population is tracked and profiled similarly.
  7. Senior Advocate Sajan Poovayya: Given the information explosion in the digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case and perhaps before a 9 judge bench.
  8. A. Bobde, J: What about dark web? Isn’t 80% of internet dark?
  9. Senior Advocate Sajan Poovayya: But State cannot be a proponent of a dark web. State must first respect privacy. State has an obligation to protect citizens digital identity as much as physical identity. No less. The declaration that privacy is a fundamental right itself is the first step towards fulfilling that obligation of oversight on executive.
  10. Senior Advocate Sajan Poovayya: If you had declared the right to privacy as a fundamental right 15 years ago, the State would not have done what they have done with Aadhaar i.e. collect the biometric data of the entire citizenry in an executive fiat.
  11. Senior Advocate Meenakshi Arora: Right to Privacy is everywhere, even under Articles 17, 24 and 25.  You may sometimes be compelled to disclose certain information but you do have a right.
  12. Petitioners have concluded their arguments. Court will hear Centre’s submission of Tuesday i.e. 25.07.2017.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

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The Supreme Court Collegium stated that every individual is entitled to maintain their own dignity and individuality, based on sexual orientation. Senior Advocate Kirpal’s openness about his orientation goes to his credit and rejecting his candidature on this ground would be contrary to the constitutional principles laid down by the Supreme Court.

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