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Right To Privacy [Day-2]- To What Extent One Can Remain Anonymous ? SC Ponders

LIVELAW NEWS NETWORK
20 July 2017 7:47 AM GMT

As the 9-judge bench of the Supreme Court continued hearing on whether right to privacy should be declared a fundamental right, it today posed pointed questions as to what level the anonymity should or can be allowed."For example you are applying for passport. They ask your father's name, mother's name, spouse's name..in certain cases for passport for an adopted child they insist on name...

As the 9-judge bench of the Supreme Court continued hearing on whether right to privacy should be declared a fundamental right, it today posed pointed questions as to what level the anonymity should or can be allowed.

"For example you are applying for passport. They ask your father's name, mother's name, spouse's name..in certain cases for passport for an adopted child they insist on name of biological parents. Then how far a citizen can say he has right to anonymity?" Justice D Y Chandrachud asked Senior advocate Anand Grover who appeared for one of the petitioners.



At this moment Justice Rohinton Nariman chipped in saying the ultimate test could be if the state's interest is compelling? Is it in the interest of the state or is the information sought arbitrary and excessive.

Chief Justice Khehar asked " you mean to say can somebody say I don't want to disclose if details sought bothers you then it comes under privacy"

Earlier in the day senior advocates Arvind Datar and Anand Grover argued that fundamental rights should be given an expansive interpretation so that it is in tune with changing times, situation and circumstances.

They argued that right to privacy is not in the periphery but central to right to liberty and life.


 HIGHLIGHTS OF ARVIND DATAR'S ARGUMENT



1) Without right to privacy all other fundamental rights will be denuded.

2)Right to privacy is recognised in several judgments of this court.

3)Though not specifically stated in the constitution it is part of Article 19 and 21. Supreme Court has several times recognised it

4)35 judgments submitted by Shyam Divan will help in evolving right to privacy

5)Now the rulings in M P Sharma and Kharak Singh under examination. It is a golden chance for the court to re-interpret

6)An individual can decide to control dissemination of his personal information

7)Protection of an individual's autonomy is of prime importance

8) The law that says one cannot be compelled to undergo narco analysis upholds right to privacy

HIGHLIGHTS OF ANAND GROVER'S ARGUMENT

1)There are several decisions of this court which upholds right to privacy

2)Even under international laws and conventions state has an obligation to protect citizens right to privacy

3)Article 19 and 21 are linked and both have good element of right to privacy

4)Right to privacy is all embracing

5) Fundamental rights should be given an expansive interpretation in tune with the times.


The bench had yesterday observed that the  right to privacy was not absolute.

“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 are revisiting 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.

 “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.





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.



Legal eagles Gopal Subramanium, Soli Sorabjee and Shyam Divan appearing for the petitioners had strongly argued for declaration of ‘Right To Privacy’ as a fundamental right as the nine judge constitution bench constituted by the Chief Justice to decide the question ‘whether right to privacy is a fundamental right under Constitution of India’ began its hearing.

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

Starting the arguments for the petitioners including a retired Karnataka High Court judge, K. Puttaswamy, and social activist Aruna Roy , Subramanium had 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

“The issue is simple. Whether M P Sharma (1954) and Kharak Singh (1963) still stand as good law and is there a fundamental right to privacy under the Indian Constitution? This was the view taken in MP Sharma's case. MP Sharma was a case about whether search and seizure under the code of criminal procedure. Kharak Singh was a case about surveillance. There are two opinions”, he had said.

“Liberty and privacy are not rights given to us. They pre-exist, they are natural rights.The question is- can liberty be exercised without privacy? Can liberty be exercised without privacy with respect to fundamental rights. Privacy is a facet of liberty. This is what Justice Subba Rao said in Kharak Singh”, argued Subramanium.

Senior lawyer Soli Sorabjee had 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”,

Shyam Divan who appeared for several petitioners 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”

“Can you compel an individual to give up their information? We say that violates the right to privacy. Privary emanates from a conjoined reading of the golden triangle of Articles 14, 19, and 21”, he argued.




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