The marathon Supreme Court hearings on the right to privacy saw debates and discussions on the "amorphous" right to privacy and whether it deserved the status of a fundamental right. The judges, lawyers and legal experts attempted to crystallise the right in a technological era where the citizens themselves voluntarily part with personal data.
Here are a few excerpts of what fell from both the Bar and the Bench during the days of marathon arguments in the case:
From the Bench:
Justice S.A. Bobde: If a man has to die with dignity, he has to have some privacy.
Justice Rohinton Nariman F. Nariman: Don't forget the little man's right to privacy, everything about right to privacy is not connected to the Aadhaar issue. Laws should reflect the “needs of the times” and protect the citizens from violations by the State and non-State players. It is the duty of the court, and not the legislature, to interpret the law. Privacy can be read into the Constitution as a fundamental right as India is part of the United National Declaration of Human Rights of 1948, which declares privacy as an inalienable human right.
Justice D.Y. Chandrachud: Essence of human life is when I want to choose solitude, I can choose it. And if I want to socially co-habit, I can do it. You (Centre) are wrong to say that privacy is an elitist construct. Privacy also affects the masses. For example, there is an increase in instances of cervical cancer among women in impoverished families. Right to privacy of these women will be the only right standing in the way of State subjecting them to a 'health trial' or, say, compulsory sterilization.
Chief Justice J.S. Khehar: If what you have been asked to disclose bothers you, then it infringes your right of privacy. Voices concern over possible misuse of personal information in public domain.
Justice J. Chelameswar: In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy... There is a battery of judgments saying privacy is a fundamental right, we cannot ignore them. We have to give serious thought to this question. A right may not necessarily confine itself to one Article in the Constitution or on one amendment.
From the Centre, UIDAI and various State governments:
Attorney-General K.K. Venugopal for the Centre: Privacy is not a single, homogenous right but rather as a bunch of rights spread over the Constitution. The right to privacy is a sub-species of the fundamental right to personal liberty and consists of diverse aspects. Not every aspect of privacy is a fundamental right. Some citizens cannot agitate against Aadhaar, saying it is a violation of their right to privacy. An elite few cannot claim that their bodily integrity would be violated by a scheme which serves to bring home basic human rights and social justice to millions of poor households across the country.
Additional Solicitor General Tushar Mehta for both UIDAI , the nodal agency for implementation of Aadhaar, and Madhya Pradesh government: What is so great about my fingerprints? I touch a file, I leave my fingerprints. These are all perceived ideas of privacy. We should aim to use technology to the maximum for the betterment of human beings. Aadhaar has 115.15 crore people enrolled, that is 98% of the population. Privacy is non-negotiable, confidentiality is non-negotiable under the Aadhaar Act. Privacy cannot be inserted as a new fundamental right into the Constitution.
The Centre's focus is on framing overarching principles for data protection.The Centre has constituted a committee of experts led by former Supreme Court judge, Justice B.N. Srikrishna, on July 31, 2017 to identify “key data protection issues” and suggest a draft Data Protection Bill.
Senior advocate Rakesh Dwivedi for Gujarat government: Transparency is a key component in the modern age and providing basic personal information could not be covered under right to privacy.
Senior advocate C.A. Sundaram for Maharashtra government: Privacy is not a fundamental right but only a "concept". Constitution makers had considered and rejected the idea of privacy as a fundamental right. For something to be a fundamental right, it has to be tangible and exact. Privacy has no exactitude, in fact, the concept of privacy varies from person to person. If made a fundamental right, it would open a flood of litigation.
Senior advocate Kapil Sibal for Opposition-ruled Karnataka, West Bengal, Punjab and Puducherry: Privacy is a constitutional right but not an absolute one. The State may collect and use personal data of citizens for a legitimate purpose and not by compulsion. Urges the need for a robust data protection law, which if violated would lead to serious consequences to curb the leakage of personal information by non-State players.
Senior advocate P.V. Surendranath for Kerala government: Privacy should be declared a fundamental right to protect citizens from intrusions by the State. In the modern world, technology has advanced so much that "what is whispered in the closet is heard in the street".
Advocates Arghya Sengupta and Gopal, Sankaranarayanan, representing the Haryana government and the TRAI and NGO Centre for Civil Society , respectively: Privacy cannot be declared as a fundamental right.
From the petitioners:
Senior advocate Shyam Divan, for the petitioners: A person's body belongs to the state only in a totalitarian State. A person should have the right to "informational self-determination". In the Internet age, a person should have control on how much he should put forward and not be compelled.
Senior advocate Sajan Poovayya: Right to privacy does not stand on the pedestal of secrecy, it holds forth from the pedestal of dignity. My informed surrender of data to a private player in this digital age is not my surrender of my personal data to all. If a private player takes my data and gives it to all, I can sue him for breach of contract. But if I give it to the State, where are the corresponding restrictions and deterrents?
Senior advocate Gopal Subramanium: The right to liberty means the right to make personal choices, the right to develop one's personality, one's aura, one' thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe. For all this, one needs privacy. So the right to liberty and lead a life of dignity includes the right to privacy. Liberty is a pre-existing natural and inherent value enshrined in the Preamble of the Indian Constitution. Liberty, dignity and privacy are inalienable rights necessary to truly understand the Constitution.
Senior advocate Soli Sorabjee: Counters Centre’s stand privacy is not a fundamental right as it is not expressedly mentioned in the Constitution. "The cherished right of Freedom of Press is also not expressedly set down in Article 19 (1). But it is deduced. Like that, privacy can also be deduced from other fundamental rights," Mr. Sorabjee submitted.
Senior advocate Anand Grover: At this stage, we cannot anticipate and have a formula for privacy, the court may indicate what may be embraced under it and the rest could be case-specific.
