New Delhi: Four states and one Union territory—Karnataka, Punjab, West Bengal, Himachal Pradesh and Puducherry—on Wednesday backed the constitutionality of the right to privacy.
Kapil Sibal, counsel for the states, told the Supreme Court that with the advent of technology, which is pervasive in nature, the state had become powerful enough to be invasive in a citizen’s life.
“The right to privacy cannot be absolute but the court needs to strike a balance between the rights of the state and citizens on one hand and rights of citizens and non-state actors on the other,” Sibal added.
Chief Justice J.S. Khehar said that at this juncture, the court was limiting itself to the constitutionality of the right and did not wish to digress from that question.
A nine-judge constitution bench headed by the chief justice was set up on 18 July to rule on the question of whether the right to privacy constituted a fundamental right.
The limited question had cropped up in the context of legal challenges to the Aadhaar unique identity number that has now become the bedrock of government welfare programmes, the tax administration network and online financial transactions. A total of 22 cases challenging various aspects of Aadhaar were being heard by the court.
In arguments that lasted two consecutive days, several counsels appearing for petitioners, including Shyam Divan, Gopal Subramanium, Arvind Datar, Anand Grover, Meenakshi Arora and Sajan Poovayya, put forth reasons on why the right to privacy should be elevated to form part of the fundamental rights guaranteed under the Constitution. They concluded their arguments for right to privacy on 21 July.
The main argument revolved around the inter link between the principles of liberty, dignity and privacy—both of which are inherent in the Preamble and the Constitution. In this regard, Chief Justice Khehar said, “Between liberty and privacy, there is a step of dignity. Dignity flows from liberty and privacy from dignity.”
Gopal Subramanium went on to explain how the prevailing fundamental rights guaranteed under articles 14 (equality before law), 19 (right to freedom) and 21 (right to life and personal liberty) of the Constitution could only be exercised through liberty and freedom of choice.
While considering the nature, scope and contours of the right, the court addressed important questions such as what the right could mean, situations it would be applicable in, whether it could be absolute, and its nexus with technology and data protection.
Justice D.Y. Chandrachud even sought to expand the dialogue into the realm of identity and questioned if the right to a person’s identity formed a part of privacy.
The court also discussed in detail the applicability of two precedents through which the discourse on a privacy law has until now developed in the country.
Both cases were collectively sought to be overruled in the light of fresh precedents and developments.
Once the privacy question is settled by the nine-judge Constitution bench, the remaining issues related to Aadhaar will be heard by a smaller bench.
Arguments in the matter will continue through the day.