Today was the third day of arguments before a nine-judge Constitution Bench of the Supreme Court in the matter of Justice K.S. Puttaswamy and Ors. v. Union of India and Ors. [W.P.(C). No. 494/2012], regarding the existence of a fundamental right to privacy in India.

Mr. Kapil Sibal, appearing for the states of Karnataka, West Bengal, Punjab and Puducherry and taking a pro privacy stance, made a short submission before the State commenced its arguments. He began his submissions by stating that privacy cannot be an absolute right and that the court has to strike a balance. He emphasized that with the advancement of technology, its nature has become all pervasive and therefore the right to privacy should be enforceable against non state actors as well. Mr. Sibal quoted parts of the judgments of Riley v. California and US vs. Jones. Mr. Sibal was also of the view that the issue of right to privacy has to be considered afresh and not from the standpoint of Kharak Singh and M.P. Sharma. He further contended that the right to privacy is an inalienable natural right that is inherent in everyone, and can manifest under other rights like Article 19 of the Constitution. He gave the example of American, Australian and Canadian Constitutions that do not have an express right to privacy, but manifests itself under other rights. Mr. Sibal discussed various tests formulated by the Supreme Court of the United States, namely the “Katz test” and “Reasonable Expectation of Privacy test”. He also stated that there should be fetters on the discretional powers of the State, and right to privacy can only be breached if there is a legitimate public interest and the authority of law to do so. Lastly, he pointed out that India needs a robust data protection law, especially for protection of data from non state actors.

Counsel for the State of Himachal Pradesh also made a brief submission on how privacy is enshrined in Article 21 of the Constitution.

Attorney General of India, Mr. K.K Venugopal, appearing for the State began his submissions by placing two issues for the court’s consideration: whether the judgments in the cases of Kharak Singh and M.P Sharma hold true today, and whether right to privacy is a fundamental right.

Mr. Venugopal stated that the framers of the Constitution deliberately did not include right to privacy in Part III of the Constitution. He asserted that life and liberty are not absolute and that is the reason why death penalty is legal in India, which in turn means that deprivation of a right is inherent under Article 21. Mr. Venugopal further talked about derivative rights under Article 21 and stated that Right to Life and Personal Liberty are qualified rights and each an every aspect of these rights cannot be elevated to the level of a fundamental right. He further mentioned that each one of these aspects have to be scrutinized in the context of which it is claimed. Mr. Venugopal maintained that privacy is a specie of personal liberty and that privacy itself is not homogeneous and contains many sub species. It is not possible to elevate all these sub species to the level of fundamental right.

Mr. Venugopal’s second point of contention was that personal liberty has to be subordinated by right to life of others. He gave the example of Aadhaar and how it benefits millions of poor in India. To this, Justice Chandrachud said that right to privacy is not an elitist right. It is also for the common masses. He gave the example of women below poverty line suffering from cervical cancer due to multiple childbirths and early marriage. In such a situation, can the State implement a program of mass sterilization. J. Chandrachud pointed out that having the right to privacy becomes important in such a scenario. Mr. Venugopal stated that only some facets of privacy can qualify as fundamental right and not all. He asked the bench, “Right to privacy is a conglomerate of many rights. Will my Lordships evaluate each and every such right before deciding whether privacy is a fundamental right or not?”

Noting how it is unfair to say that Aadhaar will turn India into a totalitarian state, Mr. Venugopal pointed out that India’s census surveys collect considerably more information about residents than Aadhaar. Right to privacy, he said, has more credibility in developed countries that are socially, economically and politically developed, but not in a developing country like India. He reiterated his submission that privacy is not a homogeneous right, and that every aspect of privacy cannot be made a fundamental right.

Justice Bobde reminded Mr. Venugopal that the Bench will only discuss whether privacy is a fundamental right, without going into the various aspects of this right. CJI Khehar concurred with Justice Bobde, and added that questions beyond privacy’s status as a fundamental right will be taken up by other small Benches in time. He also observed that the fact that right to privacy is not absolute does not necessarily mean it cannot be a fundamental right, since other fundamental rights like freedom of movement are also non-absolute.

Justice Nariman then asked Mr. Venugopal how he would substantiate his contention that there are some sub-species of privacy that constitute fundamental rights, if privacy overall is not elevated to a fundamental right. He also outlined two domains of mental activity around which privacy rights exist, namely dissemination of information and the individual’s private choices, and asked Mr. Venugopal to explain how either of these do not fall under Article 21 in his view. Mr. Venugopal said in response that he is merely objecting to the petitioners’ contention that privacy is a homogeneous right, and that the various sub-species of privacy must be tested individually to determine if they qualify as fundamental rights. Noting that privacy is a sociological rather than a legal construct, he reiterated his contention that privacy is a derivative right that is secured by protecting more cognizable rights.

Justice Chandrachud observed at this point that there may be certain aspects of one’s personal life that do not invoke the right to privacy. For instance, while it may be acceptable to ask a woman about her marital status or about the number of children she has, it is certainly not acceptable to ask her about the number of abortions she has had, as this would be considered violative of her privacy. Illustrating further, Justice Chandrachud pointed to a Maharashtrian law that prohibits the third child of a family from contesting elections. In this case, he said a candidate would be required to disclose if he is a third child, and whether he was born out of his parents’ first marriage or otherwise. Justice Chandrachud cited the disclosure of transgender status as yet another example of information disclosure that is not considered a violation of privacy.

Adding to Justice Chandrachud’s observations, Mr. Venugopal questioned the unwillingness to disclose for Aadhaar the same information that is disclosed for election or census survey purposes. He then read out portions of the Representation of People’s Act that mandate public disclosure of information, and also read out judgments that upheld various facets of this mandate. Justice Chelameshwar said elections are not the right example as information disclosure in this case is about balancing constitutional interests.

Mr. Venugopal submitted further that even if the court upholds a right to privacy, it is not an absolute right, but one that would be outweighed by overwhelming public interest among other things. He said he firmly believes that it is difficult to uphold right to privacy in a developing country as there are far graver issues to tackle first, and mentioned human trafficking and starvation as examples. The State, he said, has a legitimate interest to introduce programs like Aadhaar and MGNREGA that seek to help people realize their rights to food, health, employment etc., and once again pointed to the World Bank report that appreciated Aadhaar. Justice Chandrachud said at this point that the existence of a legitimate state interest to introduce Aadhaar does not foreclose the possibility of there being a right to privacy, and pointed to the forced sterilizations of 1975 as one of the worst evils that India has seen.

Mr. Venugopal then contested that while there may be a fundamental right to privacy, it is a qualified right that has many sub-species, all of which will not fall under Article 21. He also contented that something as amorphous as a general right to privacy should not be considered a fundamental right, and requested that the Bench allow him to argue before a smaller Bench that there is no claim of fundamental right involved in the present petition. The Bench reminded Mr. Venugopal that he had earlier insisted on bringing the matter from a five-judge to a nine-judge Bench, as a result of which the present Bench was constituted. Additional Solicitor General Tushar Mehta appearing for UIDAI briefly interjected at this point that he would argue privacy to be an enforceable right, though not a fundamental right. The Bench said will decide on the existence of a fundamental right to privacy in a very detailed judgment for the conceptual clarity of the nation.

This concluded arguments for the day. The hearing will resume tomorrow and the State will continue its submissions.