“If we say there is Right to Privacy, judgment in Naz Foundation could become vulnerable”, DY Chandrachud J.

The case before a 9-judge Bench (Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors ) of Supreme Court on the Right to Privacy witnessed an interesting turn in the second half, as the Bench, particularly Justices DY Chandrachud and Rohinton Nariman, posed some pressing questions to the counsel representing the petitioners..When the Bench reassembled in the afternoon, Senior Advocate Shyam Divan resumed his arguments. After Divan concluded, Senior Advocate Arvind Datar commenced his submissions..His arguments were largely centered around the ratio decidendi in the judgments of MP Sharma and Kharak Singh. He submitted:.“In both MP Sharma and Kharak Singh, the issue of whether privacy is envisaged in Part III or not was not in question. Ratio decedendi in both MP Sharma and Kharak Singh is not whether Right to Privacy is a Fundamental Right or not..They are taking one line from MP Sharma and one line from Kharak Singh and arguing there is no right to privacy and that is the law of the land.”.Datar also relied on foreign jurisprudence to buttress his arguments..Justice Chandrachud, however, continuously posed questions to Datar, especially regarding the scope of the Right to Privacy..“What would be the scope of the right? Would it include marriage – probably yes; procreation – probably yes; sexual orientation – probably yes..The moment we say there is Right to Privacy, the judgment in Naz Foundation becomes vulnerable“..The Supreme Court had, in 2013, set aside a judgment of the Delhi High Court decriminalizing Section 377 of the Indian Penal Code. An apex court Bench headed by Justice GS Singhvi had overruled the High Court’s decision in a petition filed by Naz Foundation..Datar said that it cannot be argued that there is Right to Life and Personal Liberty but no Right to Privacy..“In 2017, for a democratic country like India to say fundamental rights includes a plethora of rights but not right to privacy would be paradoxical.”.Gopal Subramanium, who had argued in the morning also weighed in..“There cannot be an exhaustive definition. Privacy is not a sub-set of liberty. It is THE LIBERTY.”.Justice Nariman then proceeded to ask what would be the parameters on which violation of Right to Privacy should be tested. Datar said that it would be speculation to conclusively define privacy though it is “definitely part of Articles 14, 19 and 21.” He said,.“Tomorrow it could be a facet of more Part III rights.”.Nariman J has, however, sought more assistance from the petitioners’ counsel on the “parameters of challenge” against Right to Privacy..The hearing will continue tomorrow.