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, which 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 Vidihi 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.
Beginning the rejoinder, senior advocate Gopal Subramanium stressed the inalienability of rights, and reminded the court how during the Emergency, citizens have once earlier been deprived of both, the right to liberty, and privacy. Senior advocate Kapil Sibal representing State of Karnataka added that privacy was the at the heart of diversity, and liberty.

Next, Mr Shyam Divan reiterated to the Bench that the right to privacy case is not just about information sharing, but about bodily integrity and about surveillance. Privacy is at the core of personal freedom and must be constitutionally protected because statute law is insufficient to protect the interests at stake, he argued.
Senior advocate Meenakshi Arora submitted that fundamental rights have no fixed content. They are empty vessels into which each generation pours its wisdom. She argued that the State cannot say, “I will give you welfare if you give away privacy”, as that would affect the rights of the most vulnerable.

Mr. Arvind Datar revisited that the Court has filled in the structure of rights with life. He emphasised that privacy is as important as life. He posited that the Court must consider the consequences if it holds that privacy is not a fundamental right. Constitutional protections previously established will be harmed, he argued.State of Kerala counsel P.V. Sundaresan dismissed the state’s claims of privacy being fluid as irrelevant, and said the fundamental right to privacy could not be denied on such grounds.

The judgement is expected by August 28, as the current Chief Justice of India J.S. Khehar’s term ends then. Subsequent to the judgment by this 9-judge Constitution Bench, the fate of the pending Aadhaar cases which challenge government notifications to make Aadhaar mandatory in a number of essential services, will be decided.

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