In the age of social media and data sharing, there will be a problem to declare privacy to be an absolute Fundamental Right, observed the Supreme Court on Wednesday. The comments of the court came during a crucial hearing that is underway on whether citizens have a Constitutional right to privacy. A nine-judge Bench of the apex court raised concerns over making right to privacy an absolute right without first defining what constitutes privacy.
The Bench, comprising Chief Justice JS Khehar, Justices J Chelameswar, SA Bobde, RK Agarwal, RF Nariman, AM Sapre, DY Chandrachud, SK Kaul, and S Abdul Nazeer, pointed out several instances to show how privacy without any boundaries can have serious consequences.
Justice Chandrachud said, “If privacy is to be found in Part 3 of the Constitution (Fundamental Rights), the State is bound to protect that right. Now if the Government collects your biometric data and allows private players to use it on a platform provided by the State, to what extent will it be permissible action by the StateIJ”
The judge asked the petitioner whether the right to privacy would mean the State cannot go into the choice of marriage, pregnancy and sexual orientation of citizens. If so, it added, that the judgment in the Naz Foundation case, declaring homosexuality to be a crime, will become “vulnerable” for review.
Senior Advocate Gopal Subramanium linked privacy to liberty and argued that a citizen’s personal choice constitutes privacy. The Bench observed, “There is some problem on stressing privacy on such absolute and overarching terms…You live in an age where an insurance policy requires disclosure of your medical profile. Similarly your personal data is disclosed to banks. Also, the Government regulates this data for purpose of crime, taxation, etc. Can privacy be so overarchingIJ”
Senior Advocates Arvind Datar and Shyam Divan appearing for another set of petitioners cited several global practices recognising privacy as a fundamental human right.
They submitted that in 2017, a democratic country like India, which says Right to life includes a plethora of rights but not privacy, will be “anachronistic and paradoxical”.
The Bench pointed out that the contours of privacy have continued to show changes, referring to how the social media was never contemplated by our Constitution makers. “In the context of technology, I put my part of personal life in public domain. Does it mean I have surrendered my right to privacy…Is privacy then the right to be left alone or excluding others,” the Bench asked petitioners.
The CJI commented, “Once you declare a right to privacy, you must define what the restrictions are and what constitutes reasonable restrictions within it.”
Justice Nariman further clarified by demanding parameters to be set in order to enable courts to decide when a particular action of the State will violate an individual’s privacy. The arguments will continue on Thursday.
Food for thought