Story Highlights

• Senior advocate Kapil Sibal appearing for four non-BJP ruled states and Union Territories argued that the right to privacy was indeed a fundamental right
• Attorney General K K Venugopal had a much harder time convincing a rather sceptical bench why privacy is not a fundamental right under the Constitution
• The divergence between the petitioners’ and the Centre’s position is this — what is the place of the fundamental right to privacy under the Indian Constitution

After two days of the petitioners arguing for the fundamental right to privacy, the Centre finally had its day in court on Wednesday. While several state governments will also take the Centre’s arguments forward, the day started with senior advocate Kapil Sibal appearing for four non-BJP ruled states and Union Territories (Karnataka, Puducherry, Punjab and West Bengal), arguing that the right to privacy was indeed a fundamental right.

None of these states’ existing laws would immediately be affected by anything the Supreme Court (SC) holds in the present case, so one can understand the desire to score a few risk-free political brownie points. Sibal’s arguments stressed more on the impact of technology on privacy of individuals without necessarily repeating too much of what was argued last week. (You can read his written submissions here).

That said, in relation to the petitioners’ counsel, Attorney General (AG) K K Venugopal seems to have had a much harder time convincing a rather sceptical bench why privacy is not a fundamental right under the Constitution. He was at pains to point out that the government was not denying that there was any right to privacy at all, just that it was not something protected in the Constitution itself.

A diversion: there are broadly two schools of thought on how to interpret the Constitution. The “originalists” look to interpret as the framers of the Constitution would have wanted it and the “non-originalists” want to interpret it to meet the changing needs of the society. While these schools have emerged in the context of the United States Supreme Court, one can find echoes of this in the Indian Supreme Court as well, though it is hard to precisely pin down most judges as definitely belonging to one camp over the other.

In arguing that there was no fundamental right to privacy, Venugopal took a very originalist stance to the interpretation of the Constitution, claiming that the framers never intended for the Constitution to protect privacy as a fundamental right. It would be quite surprising if the SC accepted this, given that the last four decades have seen dramatic changes in the apex court’s interpretation of the Constitution in so far as judicial appointments, federalism and even fundamental rights themselves are concerned. Even where the SC had earlier taken an “originalist” position (say, that the CJI’s advice to the government in appointing judges was only recommendatory) it has not hesitated to change its view keeping changed circumstances in mind.

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

As understandable as the originalist approach to interpreting the Constitution is, a far more puzzling (and frankly, bizarre) line of argument addressed by Venugopal was that the SC should not recognise the right to privacy in order to tackle the problems of poverty in the country. It was a somewhat strange argument that raised a few eyebrows on social media as well (at least among those who were following the case). An attempt was made by Venugopal to suggest that the elevating the right to privacy to a fundamental right would impede in poverty relief — a submission that seemed to be rebuffed by Justices Rohinton Fali Nariman and D Y Chandrachud, the latter of whom pointed out that some of the worst breaches of privacy (forced sterilisation for instance) were carried out on poor men and women.

On surer footing perhaps was the attorney general’s alternate argument that assuming there is a fundamental right to privacy, not every aspect of it was protected as a fundamental right and would need to give way to state/public interest. Chief Justice of India Jagdish Singh Khehar, on a lighter note, suggested that if Venugopal was willing to make this statement, they’d end the hearings and pass judgment there itself as the parties seemed ad idem.

What is compelling state interest to restrict privacy and what would be the contours of the right to privacy is something that would have to be decided on a case to case basis (as the judges have said before). If there is consensus on this between the parties, the judges will also be somewhat spared the trouble of writing a detailed judgement. This would also mean that while the SC recognised a fundamental right to privacy, the Centre would still have the opportunity to defend Aadhaar and its law within this framework.

Nevertheless, the divergence between the petitioners’ and the Centre’s position is this — what is the place of the fundamental right to privacy under the Indian Constitution? Is it just another aspect of another right that doesn’t enjoy constitutional protection or is it essential and core to a whole range of other fundamental rights that cannot be enjoyed without a concomitant right to privacy. This is the question that the Supreme Court will settle and thereby lay the ground for judicial review of a whole host of laws in the future.

After the Centre finishes its arguments on Thursday, counsels on behalf of other state governments such as Maharashtra, Haryana and the UIDAI itself will continue. Even if they complete the hearings on Thursday, it is likely that petitioners will request time to rebut certain new points made by the counsel for the respondents. It is likely the arguments are only going to be complete in the first week of August. With Khehar retiring on the August 27, that leaves less than four weeks for the judgment to be prepared in such a monumental case.

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