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Breaking: Right To Privacy A Fundamental Right? SC Verdict Tomorrow

LiveLaw News Network
23 Aug 2017 10:04 AM GMT
Breaking: Right To Privacy A Fundamental Right? SC Verdict Tomorrow
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A nine-judge constitution bench of the Supreme Court will at 10:30 AM tomorrow pronounce its verdict on whether right to privacy can be elevated to the status of a fundamental right under the Indian Constitution.


The court had reserved its verdict on August 3 after marathon day-long hearings spanning six days across three weeks. The bench comprised of Chief Justice J S Khehar and Justices J Chelameswar, S A Bobde, R.K. Agrawal, Rohinton Nariman,  A M Sapre, D Y Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.


A battery of senior lawyers, including Attorney General KK Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subramaniam, Shayam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi, had advanced arguments in favour and against the inclusion of the right to privacy as a fundamental right.

Petitions questioned the violation of privacy in collection of information under Aadhaar.

Before the nine judge bench was set up, a five-judge constitution bench headed by chief justice J. S. Khehar earlier said that the larger bench would examine the correctness of the two judgements delivered in the cases of Kharak Singh and M. P. Sharma in which it was held that right to privacy was not a fundamental right.

Crucially, this bench examined whether the two earlier rulings were correct expressions of the constitution.


Legal eagles Gopal Subramanium, Soli Sorabjee and Shyam Divan appearing for the petitioners strongly argued for declaration of ‘Right To Privacy’ as a fundamental right.

Subramanium contended that privacy is embedded in all processes of human life and liberty. “All human choices are an exercise of liberty. And they all presuppose privacy”, he argued

Sorabjee argued that privacy is an inalienable right inhering in the very personality of Human beings.” The fact that no express right to privacy is mentioned in the Constitution does not mean that it doesn't exist  Article 19(1)(a) does not guarantee a freedom of the press. But you can deduce it from free speech, which courts have done. The framers said that freedom of the press was implicit in free speech”,

Divan argued that “We have an unbroken line of decisions since 1975 recognising the right to privacy. Privacy includes the right to be left alone, freedom of thought, freedom to dissent, bodily integrity, informational self-determination”


Strongly backing the Aadhaar scheme, the Centre submitted that the right to life of millions of poor in the country through food, shelter and welfare measures was far more important than privacy concerns raised by the elite class.

Controversially, Attorney General K K Venugopal arguing for the Centre also stated that privacy claims required better priority in developed countries "not in a country like India where a vast majority of citizens don't have access to basic needs".

He said right to privacy cannot be invoked to scrap the Aadhaar scheme. The government was categorical that after enrolling nearly 100 crore citizens spending an astronomical amount of Rs 6,300 crore there was no going back.


If the Supreme Court eventually declares privacy as a fundamental right, it would be majorly drawing inspiration from several international conventions. Justice Rohinton Nariman dropped a hint in this regard. "We have on a number of occasions used international conventions to read in new rights into fundamental rights," Justice Nariman had said.

"UN Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR) to which India is a signatory had expressly recognised privacy as a fundamental and inalienable right and this constitutional bench just had to read it in," Nariman added.

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