Court notes that an attempt to define the right to privacy might cause more harm than good.

Privacy is not absolute and cannot prevent the State from making laws imposing reasonable restrictions on citizens, the Supreme Court observed on Wednesday. It noted that ‘right to privacy’ was in fact too “amorphous” a term.

The court said to recognise privacy as a definite right, it had to first define it. But this would be nearly impossible as an element of privacy pervaded all the fundamental rights enshrined in the Constitution.

“How 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 person’s privacy?” Justice Chandrachud asked the petitioners who have challenged the Aadhaar law on the ground that it affects the privacy of citizens.

The court said that an attempt to define the right to privacy may cause more harm than good.

An exhaustive cataloguing by the court of what all constitutes privacy may limit the right itself, Justice Chandrachud observed.

Nine-judge Bench

Justice Chandrachud is part of a nine-judge Constitution Bench, led by Chief Justice of India J.S. Khehar, examining a reference on the question whether privacy is sacred, fundamental and an inviolable right under the Constitution.

Attorney General K.K. Venugopal had submitted in the court that right to privacy is merely a common law right and the Constitution makers “consciously avoided” making it a part of the fundamental rights.

The decision of the nine-judge Bench on whether privacy is a fundamental right or not will be pivotal to the petitioners’ challenge that Aadhaar, which mandates citizens to part with their biometrics, is unconstitutional.

In the day-long hearing before a packed courtroom, the Bench questioned the petitioners’ plea that right to privacy is non-negotiable.

“If people have put themselves in the public realm using technology, is that not a surrender of their right to privacy” Justice Chandrachud asked.

Jaitley's statement

The court’s questions came even as the petitioners banked on Union Finance Minister Arun Jaitley’s statement in Parliament that privacy is “probably” a fundamental right and a “part of individual liberty”.

The statement was made on March 16, 2016 during the presentation of the Aadhaar Bill in Parliament.

Senior advocate Shyam Divan, representing the petitioners along with advocates Vipin Nair and P.B. Suresh, submitted that a person should have the right to “informational self-determination”.

“In the Internet age, a person should have control on how much he should put forward and not be compelled,” Mr. Divan submitted.

He said there was hardly any data protection in this digital age, inevitably leading to a compromise in privacy.

But Justice Chandrachud observed that right to privacy cannot be linked to data protection. He said this is the age of “big data”, and instead of focussing on privacy, steps need to be taken to give statutory recognition to data protection.

On right to make personal choices

Senior advocate Gopal Subramanium, who opened the arguments for the petitioners, responded that the constitutional right to privacy does not mean mere protection from the State’s ingress.

“The right to liberty means the right to make personal choices, the right to develop one’s personality, one’s aura, one’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,” he submitted.

“Your argument is that the constitutional right to privacy is much larger in dimension from the common law right to privacy, which is only confined to be left alone in my home, which is my castle?” Justice Rohinton Fali Nariman asked Mr. Subramanium.

“You are saying liberty, which includes privacy, is the bedrock of all rights,” Justice S.A. Bobde asked.

Mr. Subramanium said liberty is a “pre-existing natural and inherent value”, which was recognised by the Constitution.

“Liberty and dignity are enshrined in the Preamble of the Indian Constitution. Liberty, dignity and privacy are inalienable rights necessary to truly understand the Constitution... Liberty is even the basis of the United Nations Declaration of Human Rights,” Mr. Subramanium submitted.

Countering Mr. Venugopal’s submission that right to privacy is not a fundamental right as it is not expressedly mentioned in the Constitution, senior advocate Soli Sorabjee said so is “Freedom of Press”.

“The cherished right of Freedom of Press is not expressedly set down in Article 19 (1). But it is deduced. Like that, privacy can also be deduced from other fundamental rights,” he said.

“Privacy is not a twilight right in the Constitution. There is no grey. In fact, is it possible for citizens to exercise liberty and dignity without privacy,” Mr. Subramanium seconded Mr. Sorabjee.

Mr. Divan, speaking in the context of Aadhaar demanding biometric details of citizens to grant them access to government welfare and benefits, said it is a violation of bodily integrity. “A person’s body belongs to the State only in a totalitarian State,” he submitted.