Story Highlights

• On Thursday, the arguments proceeded along similar lines as Wednesday, with a lot more discussion on how the law on the subject has developed in other countries; the hearings will go on for at least another day, if not two more
• There was some consensus that it would not be possible for the court to define, in one judgement, the entire scope and gamut of the right to privacy, and it may be best to leave it to be decided case-by-case
• The seemingly straightforward issue of whether, in light of past precedents, the Constitution protects the right to privacy has attained many more dimensions than expected

The one-day hearing of the nine-judge bench extended to two days, and will go on for at least another day, if not two more. The Supreme Court’s hearings on the right to privacy, raised in the specific context of Aadhaar, which started Wednesday, remained inconclusive even on Thursday. All the counsels appearing for the petitioners concluded their arguments today (Thursday) and you can read their submissions here. While on Wednesday, arguments were led by senior advocates Gopal Subramanium, Soli Sorabjee, Shyam Divan and Arvind Datar, on Thursday it was the turn of senior advocates Anand Grover, Sajan Poovayya and Meenakshi Arora.

Read about Wednesday’s hearing on the Aadhaar petitions.

The arguments proceeded along similar lines as Wednesday, with a lot more detailed discussion on how the law on the subject has developed in other countries. There were references to the landmark article of Louis Brandeis and Samuel Warren on the right to privacy, extensively referred to by the Supreme Court in the Gobind v State of MP case. There was some consensus, however, that it would not be possible for the court to define, in one judgement, the entire scope and gamut of the right to privacy, and perhaps it would be best to leave it to be decided case-by-case. Of course, this presumes that the right to privacy can be clearly identified in the Constitution even if every aspect and extension of it depends on the situations that come to court.

The after-lunch session saw an interesting discussion on the place of privacy in the digital world. In a talk between Justice D Y Chandrachud and Poovayya, the point that people are increasingly putting out more information about themselves and that more data exists than ever before came up. The point being: would collection of data per se amount to a breach of privacy or its misuse only? Poovayya explicitly linked data protection to privacy, saying that both the collection of data and its use by the government had to be for a purpose identified and permitted under the law, and such law had to meet constitutional requirements.

Also read: Dear Mr R S Sharma: Aadhaar has no place on the open web

Justice Sharad Arvind Bobde seemed to have done his homework in the short time since the bench was constituted — the Supreme Court possibly saw the first references to the dark web, Bitcoin and blockchain. Not that the Supreme Court is going to try and answer the reference in the context of these, but as Bobde pointed out, it may be necessary to keep in mind while laying down the broad principles that will shape the law in the future.

Poovayya’s broad argument fit in with the larger theme of the petitioners’ case — that privacy is not just another right and informs a whole range of fundamental rights under the Constitution. It flows not from the need to keep things secret (as people are wont to confuse), but from the requirements of basic human dignity. The concept of a limited government, they argued, would be impossible without the recognition of a right to privacy that cannot be completely taken away by the government, even by the law.

In one sense, the argument of the petitioners asks for the evolution of the law in the context of fundamental rights. From a narrow, pedantic reading in the initial cases, the Supreme Court has widened and expanded its understanding of how fundamental rights work under our constitutional scheme. The debate over privacy goes deep down and asks some searching questions as to what fundamental rights really are, and where do they emanate from. Is the Constitution granting the rights? Or only recognising and protecting them? If it’s the latter, where do they emanate from then? Are there rights that the law can never take away in any context?

Perhaps these were not the questions that Chief Justice of India Jagdish Singh Khehar had in mind when he referred the question of constitutional right to privacy to the nine-judge bench to resolve. The seemingly straightforward issue of whether, in light of past precedents, the Constitution protects the right to privacy has attained many more dimensions than expected.

On Wednesday, Justice Chandrachud hinted at the impact of the finding on privacy on the constitutional approach to LGBT rights and on Thursday Poovayya raised a rhetorical point about a person visiting a gay bar being entitled to privacy. One of the deafening silences in the Supreme Court’s horrendous judgement in the Suresh Kumar Koushal v Naz Foundation case was its unwillingness to even engage with the detailed arguments on how the right to privacy under the Constitution would require the striking down of Section 377 of the Indian Penal Code. It’s too early to speculate, but this might be something that the Supreme Court may deal with implicitly in its judgement, perhaps laying down the foundation for the eventual overturning ofKoushal.

Given all these implications, it will be interesting to see how the government responds to these propositions on Tuesday.

---