Right to privacy can’t be absolute, may be regulated: Supreme Court

A nine-judge Constitution bench, headed by Chief Justice JS Khehar, also asked the Centre and others to assist it about the “contours” and ambit of test on which the width and scope of right to privacy and its infringement, if any, by the State would be tested.

A rare 9-judge bench of the Supreme Court said the right to privacy is not absolute, making its first observations on Wednesday as it began hearing on an issue that could have a sweeping impact on issues such as the Aadhaar scheme and the law criminalising homosexuality.

The Bench referred to issue of data protection and said that its ambit was “much wider” than right to privacy and “cataloguing the contents of privacy” has the danger of limiting the right itself.(PTI)

Led by the Chief Justice of India JS Khehar, the Constitution bench said that if right to privacy is defined as a fundamental right, the top court’s 2013 ruling upholding Section 377 — which criminalises homosexuality — “falls”.

The bench began the process to decide if privacy can be regarded as a fundamental right guaranteed to all Indians, a question that arose from the legal challenge to the Aadhaar programme that activists say impinges on the right to privacy.

“If privacy is about right to make a choice, then choice in what areas? Family, sexual orientation, gender identity, surveillance, what all?” it observed.

The judges will revisit previous rulings by the Supreme Court— one by an eight-judge bench in 1954 and the other by a six-judge bench in 1962 — to study if they were the correct interpretation of constitutional provisions. Both rulings rejected the idea that privacy was a fundamental right.

Privacy was one of the grounds on which the Delhi High Court had struck down Section 377 in 2012, but its ruling was overturned by the Supreme Court a year later. A curative petition against the ruling filed by NGO Naz Foundation has raised the issue of right to privacy afresh.

“If yes (i.e. if right to privacy is a fundamental right), then Naz Foundation (ruling) falls,” Justice DY Chandrachud –a member of the bench – said to the lawyers who argued privacy was a facet of liberty, which the Constitution guarantees.

In addition to the Section 377 case, the SC’s ruling on privacy will impact a case against mobile communication application WhatsApp in which petitioners have opposed its policy to share user data with its parent Facebook.

Based on a ruling by this bench, a separate bench of three judges will decide on petitions that challenged the government’s decision to make Aadhaar compulsory for crucial procedures such as Income Tax declarations and for opening bank accounts.

‘NEED TO DEFINE PRIVACY’

During the hearing the bench felt that right to privacy was too “amorphous” a term and said that to recognise privacy as a definite right, it had to first define it.

“How do we define privacy? What are its contents? Its contours? How can the State regulate privacy? What obligations does the State have to protect a person’s privacy?” Justice Chandrachud asked the lawyers representing petitioners in Aadhaar case. An attempt to define the right to privacy may cause more harm than good, the bench said.

The observations may or may not be a part of the court’s final ruling.

Justice Chandrachud also posed several questions on data protection in the age of social media, saying social media did not exist when the Constitution was made. “If people have put themselves in the public realm using technology, is that not a surrender of their right to privacy?,” the judge said, asking if right to privacy is non-negotiable.

Earlier, former Attorney General Soli Sorabjee called government’s argument that privacy is not sacred because the Constitution does not mention it as fallacious. “It does not signify that the right does not exist,” he told the court in a brief submission. Sorabjee reminded the bench that even freedom of press was denuded from other fundamental rights given in the Constitution.

Senior advocate Shyam Divan placed before the bench a statement made by a minister in March admitting privacy was “probably a fundamental right” and “part of individual liberty.” The statement was made during the presentation of the Aadhaar Bill in Parliament.

Divan said in the internet age, one should have the right of “informational self-determination”. “I should know how much I should put forward and not be compelled,” he submitted.

He complained there was hardly any data protection in this digital age, leading to a compromise in privacy.

Former solicitor general Gopal Subramanium said right to liberty and lead a life of dignity includes the right to privacy.

“The right to liberty means the right to make personal choices, the right to develop one’s personality, one’s aura, one’s thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe,” he told the bench, which will continue hearing the case on Thursday.