Day 4 Arguments (K.K. Venugopal)

July 27th 2017

The 4th day of the Right to Privacy hearing continued with arguments from Mr. K K Venugopal who argued that even if the State’s primary argument that the right to privacy was not granted in the Constitution (MP Sharma (1954) and Kharak Singh (1962)) was to be rejected, privacy in itself was too vague a concept to be granted legal status. The State’s three fold argument was that there is no fundamental right to privacy; even if privacy were to be traced in liberty, all aspects of the multifaceted right cannot be granted constitutional protection; and there was no fundamental right to keep information private from the State. Mr. Venugopal relied on the US decisions in NASA v Nelson and Nixon v Administrator of General Services to substantiate the State’s claim on the absence of a right to informational privacy. Justice Chandrachud pointed out that US jurisprudence had explicitly recognised that the privacy right emanated from the Bill of Rights in a line of decisions from Roe v Wade to Lawrence v Texas. Mr. Venugopal however persisted that though the right to privacy had been granted recognition, the question of informational privacy had been left unanswered owing to the judicial ambivalence on the subject and Justices Scalia’s and Thomas’s separate concurring opinions in NASA were illustrative of the doubts around informational privacy.

Justice Chandrachud outlined the positions he thought relevant to defining informational privacy – Justice Scalia’s opinion in NASA that informational privacy was not a fundamental right, the right to privacy as an unqualified right that included informational privacy, and the right to privacy as a fundamental right with limited data protection laws. He expressed his preference for the last approach, for given the quantum of data, absolute protection in both the public and private domain would not be pragmatic. The key concern, therefore, would be to demarcate the extent of data protection to which Mr. Venugopal responded that compelling state interest would be the determining factor, sketching out instances like disclosure of assets for the purpose of elections to elucidate his argument, but agreed with the lower standard of legitimate interest proposed by Justice Chandrachud.

Mr. Venugopal then referred to protective measures under the Aadhar Act and the Aadhar (Sharing and Information) Regulations, 2016 that required the consent of an individual for the government to access demographic data. He drew parallels with the Social Security Scheme in the US to argue that Aadhar too relied on the disclosure of information for limited purposes. At this point Mr. Subramaniam interjected that protective measures would also have to be put in place against private entities as well. Justice Nariman pertinently noted that a chapter of the Aadhar Act also dealt with privacy interests, questioning whether that in itself would not be a legislative recognition of the Right to Privacy? Mr. Venugopal sought permission to address the question at a later stage and proceeded to conclude arguments on behalf of the Union of India.

Arguments for the Union of India concluded on the note that both M.P. Sharma and Kharak Singh expressly rejected the privacy right after perusing the Constitutional Assembly Debates and to now read it into the Part III would be contrary to constitutional intent.

The Attorney General of India, Mr. K K. Venugopal appeared for the Union of India in Justice K.S. Puttaswamy v Union of India (W.P.(C) No. 494/2012).

(This post relies on contributions by Ms. Nidhi Khanna)