Day 1 of Arguments on 19th July 2017

A 9 Judge Bench of the Supreme Court began hearing arguments on whether the right to privacy is a fundamental and inviolable right under the Constitution of India, 1950. The bench comprised Chief Justice Khehar and Justices Jasti Chelameshwar, S.A. Bobde, DY Chandrachud, Abdul Nazeer, Nariman, R.K. Agarwal, Abhay Manohar Sapre, and Sanjay Kishan Kaul.

Mr. Gopal Subramanium began by addressing whether M.P. Sharma v Satish Chandra (1954) and Kharak Singh v State of Uttar Pradesh (1962) was good law. Justice Chelameshwar interjected that if the issue before the Court was so simple a 9 judge bench would not be required. Mr. Subramanium responded that as these decisions have been held to be bad law by succeeding judgments, the court must consider whether these judgments were valid law and if individuals had a fundamental right to privacy.

Mr. Subramanium began by noting that A.K. Gopalan v State of Madras (1950) established the principle of exclusivity and distinctiveness of fundamental rights – fundamental rights not explicitly guaranteed under Article 19 would be protected by Article 21. Hence, what is guaranteed under Article 19 would be excluded from Article 21.

In Kharak Singh the validity of surveillance and domiciliary visits by the police under the U.P. Police Regulations was challenged. Mr. Subramanium pointed out that the majority decision found the regulations valid under Article 19(1)(d) and concluded that there was no need test for validity under Article 21. However, Justice Subbarao’s dissenting opinion held that that personal liberty was a full-fledged right under Article 21 and not merely the residue of liberty protected under Article 19 and state action must be tested on the anvil of all fundamental rights and freedoms in the Constitution. Further, he concluded that privacy was a facet of personal liberty which was in turn an inalienable aspect of Article 21. Mr Subramaniam urged that even CJI Sikri in Kesavananda Bharati v State of Kerala (1973) held that even the basic structure exists for the citizen who is the supreme person under the Constitution.

Justice Chelameshwar asked whether this argument that life and personal liberty are natural rights rooted beyond the Constitution and inalienable meant that ADM Jabalpur v SS Shukla(1976) should be reconsidered. Mr. Subramanian replied that it should if it is required as subsequent decisions of the court have held that it is not good law. Justice Nariman interjected to say that this was because the Constitution (44th Amendment) Act took away the basis for ADM Jabalpur. Justice Chandrachud added that liberty was inalienable under the Constitution as even Article 359 which provides for proclamations of national emergency says that Article 21 cannot be suspended.

Mr. Subramanium agreed and suggested that liberty is a pre-existing inherent value articulated in the Universal Declaration of Human Rights and the basis of all human rights including privacy. He argued that all the fundamental rights including Articles 19(1)(a), (d) and Article 21 contemplate the protection of liberty and privacy, a view endorsed by Justice Subba Rao in Kharak Singh.

He relied on Lawrence Tribe’s phrase the ‘invisible Constitution’ to support reading implicit rights into the Constitution. He suggested that liberty is granted by the Constitution in many places including the Preamble. He noted that the Preamble uses two words – liberty and dignity. He suggested that ‘liberty’ is analogous to American jurisprudence while ‘dignity’ was used in continental European jurisprudence. Maneka Gandhi v. Union of India (1978) build on Justice Subba Rao’s dissent in Kharak Singh to recognize that liberty was inherent in the constitution while Chief Justice Sikri in Kesavananda Bharti (1970) embraced the idea that individual dignity was at the core of the Constitution.

Mr Subramanium then turned to Govind v State of Madhya Pradesh (1975) which referred to American and European law to develop a concept of personality that protected decisional, informational and spatial privacy. In this case the court held that the development of one’s thought is the kernel of liberty and hence privacy is not a penumbral right but is the essence of liberty. He argued that to have free will one needs privacy. It covers a person’s day to day functioning, his/her choices – both internal and external. A human being cannot survive without this liberty. Anything he/she does in the exercise of judgment is free will. As it is the development of individual personality that is guaranteed by the Constitution it is inalienable and quintessential for understanding the Constitution and to effectuate it.

He then argued that it was important to recognize the transformation in constitutional interpretation from Gopalan to Maneka described in Mohd. Arif v Supreme Court of India(2014). In this period of transformation MP Sharma and Kharak Singh were repudiated in Selvi v State of Karnataka (2010), despite being a 3 judge bench, on the grounds that post-Maneka these cases were bad law.

Next, he pointed out that the words – ‘democratic’ and ‘republic’- in the Preamble require the protection of liberty. A conjoint reading of Articles 14, 19 and 21 suggests that all three Articles protect privacy, liberty and dignity. Article 14 protects liberty by requiring limited government under the Constitution. While Article 14 is often viewed in terms of differentiation, reasonable classification and nexus with the object of state action, as an overarching principle it sets limitations on the government. Though other fundamental rights besides Article 14, 19 and 21 are not mentioned in Maneka, none of them can be excluded without privacy and liberty being affected. He argued that he was not asking for an expansion of Article 21 but for a recognition of privacy as a right which pre-exists the Constitution as was recognized by J. Subba Rao in Kharak Singh and then in Govind. As the exercise of all freedoms is founded in privacy the protection of privacy is the key to rights protection.

Justice Chelameshwar asked if the 4^th Amendment in the American constitution was the only source of privacy or should it include the 9^th Amendment privacy set out in Griswold. Justice Chandrachud enquired if individual autonomy includes the right to choose could one surrender one’s privacy. Mr. Subramanium replied that he was not exploring the scope of privacy under new technology but only the protection of a privacy right as a constitutional or pre-constitutional value. When Justice Chandrachud persisted with this question, Mr Subramanium replied that he would address this later as he would need to discuss the possibility of a waiver of rights. Then, Justice Bobde asked about the scope of the privacy right: is it only the right to be left alone and exclude others from one’s space or something more? Mr. Subramaniam replied that the right to be left alone is only the circumference of the right. It has four aspects: spatial, decisional, informational and development of self.

Mr. Subramanium then reiterated that MP Sharma and Kharak Singh were undone by RC Cooper and Maneka. In Maneka even the freedom of movement is considered an aspect of personal liberty under Article 21 and hence any state action must satisfy all aspects of Articles 19, 21 and 14. Justice Chelameshwar affirmed this view and pointed out that even assuming that liberty and Article 19 are distinct, these facets of liberty are protected by other parts of the Constitution.

Justice Nariman then asked if the argument was that the constitutional right of privacy had wider scope than the common law right of privacy? Mr. Subramanium confirmed that this was his argument and that Rajagopal v State of Tamil Nadu (1994) and Gobind clearly recognize such a constitutional right to privacy.

Justice Chelameshwar asked whether Sareetha v Subbaiah which discussed restitution of conjugal rights and the right to cohabit violated the right to privacy. Mr. Subramanium responded that the State’s relationship with the citizens is the primary focus of constitutional protection. Justice Bobde enquired specifically if privacy should be protected both vertically against the state and horizontally against private citizens. Mr Subramanium suggested that Indra Sawhney discussed this possibility and concluded by suggesting a broader concept of privacy that includes the private domain.

Mr. Gopal Subramanium, Sr. Advocate appearing for the Petitioner in W.P. (c) No. 37 of 2015, Col. Mathew Thomas vs Union of India and Ors. which has been tagged with this matter.)