*Privacy crucial in digital age*

A democracy cannot exist without the Right to Privacy

A Summary of Day 2 of the Nine Judge Constitution Bench Hearing

The bench of nine SC judges continued hearing arguments for a second day, to settle the question of whether Indian citizens have a fundamental right to privacy, in the ongoing Aadhaar case. Several petitioners had questioned whether the government can mandatorily link the 12-digit, biometrics linked UID number to government services, and make it compulsory to enroll in the biometrics database.

Senior advocate Arvind Datar reiterating that any right to privacy cannot be solely located under any one article of the Indian Constitution. Given the judges’ questions on defining the contours of the right to privacy, Datar laid emphasis on deciding the test of right to privacy on a case-by-case basis.

Senior advocate Anand Grover then reiterated that the right to privacy must be given a flexible meaning. He referred to the Protection of Human Rights Act, 1993, specifically Section 2(f) to suggest that international human rights law had been read into Indian law. Locating dignity within Article 21, he said privacy must be cultivated from dignity. He highlighted the hyphenation of “privacy-dignity claims”, quoting from the 1975 order in Govind vs State of MP: “there can be no doubt that privacy-dignity claims deserve to be examined with care.”

Grover also addressed questions from the judges on the privacy violations by non-state actors, which he said the State was duty-bound to protect, by enacting a law as needed.

Senior advocate Sajan Poovayya responded to the questions raised on Wednesday on privacy in the context of data protection, positing that data protection was a subsidiary argument to privacy. He reiterated that privacy can reside in several articles, citing the example that lack of privacy can have a chilling effect, triggering freedom of speech protections under Article 19(2). The question of protecting privacy could not depend on first determining the location of the right to privacy.

To a further question on whether the violation of right to privacy occurred during collection or data or its misuse, he reiterated that the limited purpose of collecting that data must be recognized by law, adding that, without informed consent, even collection would be a violation.

Senior advocate Meenakshi Arora concluded arguing that even the majority judgment in Kharak Singh had been interpreted by later decisions of the Supreme Court as having incorporated a right to privacy, such as in R. Rajagopal v. State of Tamil Nadu as well asPUCL v. Union of India. Ms. Arora added that the right to privacy can be drawn from Articles 17, 24, and 25 of the Constitution - not just Articles 14, 19, and 21.

In closing, Ms. Arora took the court through an evolution of the right to privacy and compared a world without privacy to an existence under one unending general warrant. She examined the German Constitution which evolved through the country’s experiences to further secure the privacy rights of German citizens. She concluded her arguments for the privacy of personal information and personal choice by stating memorably: “History teaches us that without privacy, the consequences are unimaginable.”

With the petitioners’ arguments concluded, the Union of India is expected to respond on Tuesday, July 21.