A Summary of the Final Day of the Nine-Judge Constitution Bench Hearing

The 9-Judge Constitution Bench concluded hearings to settle the question of whether there exists a fundamental right to privacy in India. The bench has reserved its judgment over whether privacy is a fundamental right in India. The judgment is expected in the next four weeks.

The government’s counsels again insisted that the Supreme Court should not recognise privacy as a fundamental right. They repeated arguments that privacy is an elite concept, that privacy interests are being only canvassed by a minority of wealthy citizens, and even that only wrong-doers were asking for privacy rights. Counsel for State of Gujarat Rakesh Dwivedi began arguing that privacy is an abstract concept. He referred to how, for medical treatment, it could be waived. At one point, Justice D.Y. Chandrachud asked if recognising a fundamental right to privacy would diminish India's stature as a “knowledge economy” and an economic powerhouse. (The same has also sometimes been asserted by the Aadhaar project’s proponents who have argued “Data is the new oil”, raising questions if citizens’ biometric data provided to government without any real choice should be harvested for commercial use.)

Advocate Gopal Shankaranarayanan, appearing for think-tank Centre for Civil Society argued that if privacy was deemed a fundamental right, it could not be waived and this would be impractical. Lastly, Arghya Sengupta, of think-tank Vidhi Center for Legal Policy, represented the State of Haryana, and the Telecom Regulatory Authority of India, claiming that no new jurisprudence was required as existing right to liberty sufficiently covered privacy on a case to case basis.

A number of senior lawyers with an illustrious record then gave a strong rejoinder to the Government of India, arguing that privacy is a fundamental right. They emphasised that in the 70th year of our Independence, it was extremely regressive of the Government of India to claim that citizens have no fundamental right to privacy. The senior advocates argued for the fundamental right to privacy, irrespective of whether a citizen is rich or poor. They cited examples from Canada, South Africa, and other countries where privacy is recognised as a fundamental right.