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The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017 and today was the 4th day of hearing. Petitioners had already concluded their arguments on 20.07.2017. Here are the 15 biggest takeaways from the Union and States’ submissions till now:

  1. Senior Advocate Kapil Sibal: Privacy is not an absolute right. Will never be. The Court will have to strike a balance. You should not lay down the law but just to hold the existence of the inalienable inherent right.
  2. Attorney General KK Venugopal: Privacy can be one of the species of personal liberty. This right of privacy consists of a large number of sub-species. All these sub species cannot be elevated to the level of a fundamental right.
  3. Dr. D.Y. Chandrachud, J: If we say privacy is not a Fundamental Right at all it would be a blanket sanction of anything the State can do.
  4. It’s preposterous to state that India will become totalitarian because of Aadhaar. Privacy claims require better priority in developed countries. In a developing country there should be no Fundamental Right to privacy.
  5. Dr. D.Y. Chandrachud, J: Privacy is not an elitist concern and it is equally applicable to the large masses. For example if State wants forced sterilization on slum dwellers for population control among that group, perhaps only privacy claim may stand in the way.
  6. Attorney General KK Venugopal: World Bank has said that something like Aadhaar should be followed by all countries. Article 21 includes right to live with dignity I.e also to basic needs such as food reasonable environment, suitable accommodation etc. An Act passed with those salutary objects cannot be defeated on claims to privacy.
  7. J. Chelameswar, J: There is not data protection n Aadhaar. The moment you put fingerprint whole world has the data access.
  8. Attorney General KK Venugopal: Section 29 of the Act provides for prohibition of disclosure of core biometrics.
  9.  Dr. D.Y. Chandrachud, J: Where is the protection for the mobile number? Why medical history is excluded from definition of demographic info and why they are not protected? There is no robust data protection mechanism.
  10. S.A. Bobde and R.F. Nariman, JJ (To Tushar Mehta appearing for UIDIA) : So you have enacted this to protect privacy! Then why are you disputing the right.
  11. Attorney General KK Venugopal:The very fact that there is an Act passed to protect privacy means there is no Fundamental Rights.
  12. Senior Advocate C.A. Sundaram: There is no unambiguous definition of privacy to be crystallized as a right
  13. CJI and S.A. Bobde, J: Life, liberty and dignity are also not defined but they are all Fundamental Rights.
  14. Senior Advocate C.A. Sundaram: Law is set of rules by which society interacts. There are NDMC rules that compound walls can only be three feet. If privacy becomes Fundamental Right, all cases challenging such laws will come before the Court. Even if the bench were to hold the right, it will have to define it to some extent. Every Government action has an impact on privacy, therefore, a broad constitutional right to privacy must not be laid down.
  15. R.F. Nariman, J: We are going to consider all aspects and give a comprehensive judgment for conceptual clarity for the nation.

Looking for a cheat sheet for petitioners’ submissions? Click here.

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

Case BriefsHigh Courts

Madras High Court: While deciding upon the petition filed in public interest, praying before the Court to direct the concerned authorities to put an indelible identification mark upon the bodies of blood donors in order to curb the menace of drugs, the Division Bench of S. Nagamuthu and M.V. Muralidharan, JJ., observed that marking individuals who are donating blood, with an indelible identification mark especially in the absence of a legislation mandating the same, amounts to violation of right to privacy under Article 21 of the Constitution.

The petitioner appearing in person contended before the Court that in present times, the students are going astray. They are more into drugs and other intoxicating vices due to being misguided by unscrupulous elements of the society. The petitioner further stated that such misguided students end up becoming drug addicts and one of the sources for these students to spend money for the drugs is by way of donation of blood for which they receive money as consideration and out of the same, they purchase drugs for their consumption. The petitioner argued that putting an identification mark which would sustain for upto 3 months, upon the bodies of the donors will prevent such donors to donate blood for at least 3 months. The petitioner further prayed before the Court to direct the concerned authorities to constitute a special squad whose task will be to spread awareness amongst the youth about the harmful effects of narcotics.

Considering the plea, the Court stated that it would be a violation of fundamental right to privacy if the Court concedes to the arguments of the petitioner and directs the authorities to mark the blood donors. Therefore the Court refused to entertain this particular plea stated in the petition. However agreeing with the concerns raised by the petitioner, the Court observed that the Government sponsored sensitization events regarding the harmful effects of drugs are not enough to address the issue, and the same should be conducted with more intensity in the Colleges by involving psychologists, psychiatrists and the leading personalities of the Society. [M.Krishnaveni v. The Chief Secretary, W.P.(MD).No.1945 of 2016, decided on 02.11.2016]