Voicing concern over possible misuse of personal information in public domain, the Supreme Court today said that protection of the concept of privacy in the technological era was a “losing battle”. A nine-judge Constitution bench, headed by Chief Justice J S Khehar, heard marathon arguments for six days over a period of three weeks and reserved its verdict on the issue whether right to privacy can be held as a fundamental right under the Constitution.
A battery of senior lawyers, including Attorney General K K Venugopal, Additional Solicitor General Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subaramaniam, Shayam Divan, Anand Grover, C A Sundaram and Rakesh Dwivedi, advanced arguments in favour and against the inclusion of right to privacy as a fundamental right.
The judgement would be delivered on or before August 27 as Chief Justice Khehar, who presided over the bench, would demit the office on that day.
The bench, which favoured “overarching” guidelines to protect private information in public domain, said there was a need to “maintain the core of privacy” as the notion of privacy was fast becoming irrelevant in an all-pervading technological era.
“We are fighting a losing battle of privacy. We do not know for what purpose the information will be used. This is exactly a cause of concern,” the bench, which also comprised justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S Abdul Nazeer, said.
Senior advocate Rakesh Dwivedi, who appeared for the Gujarat government, however, said transparency was a key component in the modern age and providing basic personal information could not be covered under right to privacy and referred to illustrations in support of his submission.
He said that commercial misuse or violation of personal information can be taken care of by the Telecom Regulatory Authority of India (TRAI) and other agencies.
The senior lawyer then referred to the Supreme Court Rules which made it mandatory for lawyers and litigants to part with various personal information like names, address, telephone number, occupation and national unique ID cards, if any, for filing a public interest litigation.
“Your lordships are marching forward with technology by seeking various personal information under the rules,” Dwivedi said, adding the Aadhaar card as an identity document was also accepted.
“But, this (Aadhaar) is not mandatory,” the bench said.
Dealing with facets of privacy, it referred to a verdict of a Georgia court (in the US) and said disseminating obscene materials was not allowed, but watching them in confines of the home was protected under right to privacy.
Dwivedi said that there was no problem if privacy right was identified as embedded in other fundamental rights and it could not be accorded a separate status of a fundamental right.
The bench said that there was a need to define the term privacy as India has become a “knowledge-based economy” and has nearly 1.4 billion people whose personal information was in public domain.
It said that if it decides in favour of the plea that right to privacy is a fundamental right, then “we will have to say what falls under it”.
It also said the core of privacy needed to be protected and should not be surrendered and referred to an illustration saying the total number of HIV+ve patients could be ascertained, but their identity had to be protected.
Toeing Dwivedi’s line, Arghya Sengupta and Gopal Sankaranarayanan, representing the Haryana government and the TRAI and the Centre for Civil Society, an NGO, said right to privacy cannot be declared as a fundamental right.
The two advocates, who were praised for their argument by the court, submitted that the ingredients of right to privacy were embedded in other rights like the right to personal liberty.
“The tail has wagged the dog,” Justice Nariman said while commending the duo.
Dwivedi said if the information to be parted with was not sensitive then it was not covered under right to privacy.
If courts wanted to ascertain the identity of lawyers, who appeared before them, then there was no harm in it and “rather it may help in administration of justice”, he said.
Otherwise, anybody can walk in black robes, he said.
The bench said, “Everybody should not have the personal information of an individual, unless somebody pastes the information on Facebook for the whole world to see.”
Sankaranarayanan referred to the facets of privacy acceptable in other countries and prohibited here.
He said that the statute prohibited sex determination tests in India and simultaneously, this was permissible in various countries on the ground that it was a private affair.
“Privacy is incapable of precise definition and ought not to be elevated in all aspects, dimensions and sub-species to the level of a fundamental right,” Sankaranarayanan said.
Sengupta said that privacy was not a separate right and rather intrinsic to the right to liberty.
“The discussion evidences a fundamental philosophical concept that privacy is purely formal and does no conceptual work that liberty cannot do, and does not do in the context of constitutionally protected personal liberty,” he said.