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Right to Privacy in India: Notes from Day 1

The hearing to determine whether there is a fundamental right to privacy under the Indian Constitution has begun in front of a nine-judge bench, as reported yesterday.

The Supreme Court’s order from yesterday said (paraphrased): “It has become essential for us to determine whether there is a fundamental right to privacy under the Indian Constitution. The determination of this question essentially entails whether the precedence recorded by the court in MP Sharma by a eight-judge constitutional bench and also in Kharak Singh vs State of UP by a six-judge bench that there is no such fundamental right is the correct interpretation of the constitution. This issue deserves to be placed before a nine-judge bench tomorrow.”

Today’s hearing:

4:00 pm: The nine-judge bench has asked the counsels representing the petitioners to work on parameters of challenge for State action in regards to privacy (source).

That’s it for today. The hearing will continue tomorrow.

3:45 pm: It has now boiled down to a single, crucial question. The Chief Justice of India says, “Question is how can we not lay down the extent of the right [right to privacy].” (source)

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Gopal Subramaniam submits that the extent of the right privacy can’t be catalogued definitely, but can be added to Articles 14, 19 and 21. However, it should be done such that for the State to take action it should first satisfy all tests for all three Articles (source: 1, 2).

2:30 pm: Arvind Datar takes over. He will only focus on the Supreme Court of the United States (SCOTUS) jurisprudence. He cites and discusses several cases from the US legal system that address right to privacy, and says that right to privacy is now part of the 4th, 5th, 9th and 14th amendments of the US Constitution (source).

2:00 pm: Hearing resumes, with Shyam Divan set to continue.

The bench has pointed out that according to the European Convention on Human Rights (ECHR), which was brought up by Divan, right to privacy does not extend to data protection.

Why is right to privacy under common law not enough? In this respect:

12:20 pm: Lawyer and former Attorney General of India, Soli Sorabjee will now continue after Gopal Subramaniam concluded.

Sorabjee concludes by saying that he will hand over written statements in this regard and hands it over to Shyam Divan, who will now continue.

Previous cases that Divan cites to put across his points include Gobind vs State of Madhya Pradesh (1975) [this was the first case in India that formally recognised the fundamental right to privacy – source], Rajagopal vs State of Tamil Nadu (1994), PUCL vs Union of India (1997), and several other cases, which Divan says have held that privacy, or at least an aspect of it, is indeed fundamental right (source).

Lunch Break. We will continue with the updates from 2 pm, when Shyam Divan will continue.

11:40 am: Justice Chandrachud asks, “Does this mean that the State is under obligation to legislate to protect privacy?

However, Subramaniam reiterates that the contours of the right to privacy will have to be addressed separately. (source).

10:45 am: Is life and liberty something a citizen has above and beyond what the Indian Constitution gives? (source)

This to and fro has led to what is one of the keys of this case: What is the definition of the concept of free choice? And can privacy be surrendered? Justice Bodbe further elaborates to ask what exactly is the outline of this right. Is it simply the right to be left alone or are there any other facets to this? But Subramaniam differentiates between spatial privacy, informational privacy, autonomy of decision making, etc.

10:30 am: Gopal Subramaniam has started on behalf of the petitioners.

Gopal Subramaniam has also said that “If liberty is a fundamental value of our Constitution, then privacy inhers in liberty.” (source) Following his opening remark, he raised a key question: Can liberty be exercised without privacy with respect to fundamental rights? (source)

We will be updating this every 30 minutes.

*The headline has been edited for clarity.

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