A Summary of Day 3 of the Nine Judge Constitutional Bench Hearing

The 9-Judge constitutional bench resumed hearings to settle the question on whether there exists a fundamental right to privacy in India. This bench in the words of Justice Nariman J “..will decide the issue once and for all for conceptual clarity for the nation.” In an important development, several states decided to join the issue on the side of the petitioners and argued that there does exist a fundamental right to privacy in India.


First, a recap. Last week, a large number of lawyers with an illustrious record argued for privacy as a fundamental right. This included Soli Sorabjee, Anand Grover, Arvind Datar, Meenakshi Arora, S Poovayya. Senior advocate Shyam Divan who argued in the PAN-Aadhaar case that Aadhaar was like an “electronic leash” on the people also appeared for the petitioners.

The government’s contention – riding on the back of the Kharak Singh judgement – which had raised the question on privacy as a fundamental right in the first place did not seem to convince the bench. There have been 40 judgements since then reiterating the right to privacy.


In fact, the government has itself, in its earlier submissions in the Aadhaar matter, not contested privacy as a fundamental right. In fact, Finance Minister Mr. Jaitley has said so on the floor of the House. Further, in the Whatsapp case, the government has this week argued for the right to privacy!

In court

On Wednesday, Senior advocate Kapil Sibal began the day’s proceedings representing the States of Karnataka, West Bengal, Punjab, and the Union Territory of Pondicherry. He took the position that privacy was indeed a fundamental right, but argued that it was not absolute, and the court would have to strike a balance between rights and restrictions. His elaboration that the contours of privacy would have to considered afresh was cut short by CJI Khehar reiterating that the concern at present was only whether privacy was a fundamental right. Responding to Justice Chelameshwar’s question on the location of a potential fundamental right to privacy, Mr. Sibal suggested Article 21 but also maintained that it is an inalienable natural right that inheres in all human beings.


The counsel for the state of Himachal Pradesh, J.S. Atri, then made a brief submission supporting privacy as a fundamental right and being part of personal liberty flowing from the Preamble to the Indian Constitution.


Attorney-General K.K. Venugopal then began his arguments for the Union. His primary prayer was that privacy is not a fundamental right, that it is too vague to qualify as a fundamental right. He argued that there can be no independent right called right to privacy, and that privacy is only a sociological notion, not a legal concept. If privacy were declared a fundamental right, then it can be a qualified right. He asked judges to state that only some aspects of privacy are fundamental, not all, and it is a limited fundamental right that can be taken away in legitimate state interest.


Most shockingly, the Attorney General then said that in developing countries something as amorphous as privacy couldn’t be a fundamental right, that other fundamental rights such as food, clothing, shelter etc. override the right to privacy.


The government will continue its submissions tomorrow, Thursday.


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