Justice Chandrachud observed that if we just hold privacy is a right, Naz judgment may become problematic.

The hearing before the nine-Judge bench of the Supreme Court on whether there is a fundamental right to privacy in India began today, with the counsel for petitioners making a strong pitch in favour of the right to privacy. The first to address the bench was senior advocate, Gopal Subramanium. He spent considerable time on the minority judgment of Justice Subba Rao in Kharak Singh. His repeated assertion was that privacy question does not arise without a notion of liberty. Turning to the Preamble of the Constitution, he said Preamble has liberty as a fundamental value, and that privacy necessarily inheres in it.

But it is his contention that privacy, like life and liberty, is not conferred by Constitution, but is inherent in all human beings, and preexisting, that lifted the mood in the Court. This was exactly the major theme of Justice H.R.Khanna’s dissent in Habeas Corpus case during the Emergency. Subramanium asked whether liberty can be exercised without privacy.

He then turned to Chief Justice Sikri’s judgment in Keshavananda case in which he had held that even basic structure of the Constitution is for the citizen, because natural law rights are inherent in all humans.

Then came another major revelation from Subramanium: All articles of Part III necessarily need privacy.

Justice Bobde observed that without privacy all other rights would be inexercisable. Subramanium agreed and added privacy is not a penumbral or concomitant right, but the very essence of liberty. “It is not only a fundamental right, but an inalienable one”, as he put it.

He then drew attention to the words, Democratic and Republic in the Preamble, and said both involve the liberty of the individual. He added that Preamble also mentions freedom of thought. “Which one of it is possible without privacy which is the essence of free will?”, he asked.

He then suggested that exercise of any one of those freedoms in Article 19 is choice, and therefore, involves right to privacy. “Irrespective of your philosophy, you need free will”, he said, inviting a riposte from Justice Chelameswar: “Whether you believe in Marx or Adam Smith”.

Subramanium then drew attention to the word, ‘sovereign’ in the Preamble, pointing out that it means collective self determination to protect liberty. Equating privacy with the element of personal choice, he said all the rights including Article 21 have this.

Justice D.Y.Chandrachud asked whether the right to privacy can be surrendered. Subramanium replied to another question from the bench saying the contours of privacy have to be developed case by case. According to him, the ratio of Supreme Court’s judgments in Sharma and Kharak Singh, which are under scrutiny, have been displaced by the latter judgments in R.C.Cooper and Maneka Gandhi.

Senior advocate Soli J. Sorabjee then made a brief submission stating that right to privacy is inherently inalienable. He also rubbished the argument that privacy, because it is not mentioned in the Constitution, does not exist. He gave the example of the freedom of the press, which is inferred from freedom of expression, expressly guaranteed in the Constitution. In his short written statement he submitted as follows;

1. Privacy is an inalienable right inherent in every human being.1. Privacy is an inalienable right inherent in every human being.2. Non-mention of Privacy explicitly in the Fundamental Rights set out in Part III of the Constitution does not signify its non-existence.3. Privacy, an invaluable right, can be deduced from other Fundamental Rights mentioned in Part III.4. For example, Freedom of the Press, though not explicitly mentioned, has been deduced from Article 19(1)(a).5. Debates in the Constituent Assembly support this proposition.6. The inescapable fact is that law is not static and immutable but is increasingly dynamic and grows with the on-going passage of time.7. A classic example of unenumerated right is that of the freedom of the press spelt out from Article 19(1)(a).

Shyam Divan, who began after him, referred to the unbroken chain of judgments from 1975 that have affirmed the right to privacy. Privacy, he said, has no definite contours, but needs to be developed case by case. In any case, it includes aspects of bodily integrity, informational self determination, etc. which have serious implications in this case.

Divan found it difficult not to refer to the Aadhaar debate, which must have taken a lot of his time in recent weeks, because of the related cases, although today, the subject was right to privacy. A gentle reminder from the CJI about this digression, brought back his focus. He then continued with the 40 unbroken line of judgments that have affirmed the right to privacy. He concluded saying that without the right to privacy, all other rights will be denuded of their vigour and essence.

Arvind Datar then began his submissions pointing out that both M.P.Sharma and Kharak Singh have only one “stray” statement on right to privacy. Justice Chelameswar pointed out that in M.P.Sharma, privacy question did not arise at all. Datar said that the Union is taking one line from M.P.Sharma and build a fortress out of a dictionary. “It will be appallingly anachronistic and paradoxical to say in 2017 that Article 21 includes 40 other rights, but not privacy”, Datar explained.

Datar’s contention was that when you declare right to privacy as a fundamental right, Article 13(2) kicks in and offers real protection to it.

Justice Chandrachud at this point, observed that if we just hold privacy is a right, Naz judgment may become problematic.

The hearing will continue tomorrow.

[This story is mostly based on the tweets of Advocate, S.Prasanna]