Privacy Be Declared A Fundamental Right In The Changing Times: Poovayya [Read Written Submission]

“In as much as the Constitution is a living document, and for it is the usufruct of the living, rather than the property of the dead, it becomes imperative to construe its provisions in light of the prevailing circumstances and jurisprudential mores”: Senior Advocate Poovayya

Affirming that right to privacy was inherent in most fundamental rights, senior advocate Sajan Poovayya who appeared for one of the petitioner in the case where a 9-judge constitution bench is holding a hearing if to declare ‘right to privacy’ as a fundamental right reminded the bench that the constitution was a living document and therefore it became imperative to construe its provisions in light of the prevailing times and circumstances.

By saying so, Poovayya had just carried on from where senior lawyer Anand Grover had left. Minutes ago, Grover had told the bench headed by Chief Justice J S Khehar: “fundamental rights need to be given an expansive interpretation in a manner so as to keep in pace with the changing times and circumstances”

Said Poovayya: “In as much as the Constitution is a living document, and for it is the usufruct of the living, rather than the property of the dead, it becomes imperative to construe its provisions in light of the prevailing circumstances and jurisprudential mores”

“Therefore, de hors the line of judicial precedents subsequent to M.P. Sharma and Kharak Singh, it is no longer res integra that the said right to privacy is a fundamental right guaranteed under Part III of the Constitution which implies a prerequisite of a specific and special procedure established by law to derogate from. It is in this light that this Hon’ble Court has also interpreted the said right to privacy as ‘sacrosanct facet of Article 21’”, he said.

The postulated issue of recognition of the right to privacy as a fundamental right is not merely to be looked at from the view point of judicial dicta (whether that in the cases of M.P. Sharma v. Satish Chandra, AIR 1954 SC 300, and Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1285, or the series of judgments thereafter on the right to privacy) but also from how the Parliament has manifested its understanding of the said right, he said.

Even in pre-constitutional legislations the sacrosanct position of a right to privacy had been legislatively recognised insofar as special procedures had been established in such laws to create any curb or fetter on any aspect of the said right to privacy, argued Poovayya adding Likewise, in post-constitutional statutes, similar procedures established by law has always been provided to create fetters on aspects of privacy.

Read the Written Submission Here