#RightToPrivacy: Subramanium, Sorabjee, Divan and Datar’s arguments on Day 1 [Read Written Submissions]

The hearing before 9-judge Bench (Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors ) on the issue of Right to Privacy as a fundamental right has commenced..Senior Advocates Gopal Subramanium, Soli Sorabjee, Shyam Divan and Arvind Datar have argued for the petitioners till now. Arvind Datar will resume his submissions tomorrow..Below are excerpts of submissions of the four Senior Advocates and the reactions of judges on the Bench..Gopal Subramanium.Privacy is embedded in all aspects of life and libertyLife and liberty are not conferred by Constitution; they are pre-existing natural rights and Constitution merely recognises themCan liberty be exercised without privacy? No.Minority judgment of Justice Subba Rao in Kharak Singh said it was essential to libertyMajority judgment in Kharak Singh has been held to be bad law by later judgments of Supreme CourtPreamble of Constitution uses two expressions – liberty and dignity. Liberty is analogous to American jurisprudence while Dignity is analogous to continental jurisprudence. Privacy is embedded in both liberty and dignity.Dignity, Liberty and consequentially privacy are not penumbral concomitant rights but is the essence of right to life. It is the heart and soul of the Constitution.Constitution places citizens as paramount with the State being the product of the Constitution.Privacy is not a sub-set of liberty. It is THE LIBERTY..Soli Sorabjee.That right to privacy is not mentioned anywhere in Constitution does not mean that it does not exist. It can be deduced from other fundamental rights.Freedom of press is not expressly provided in the Constitution. But it is deduced from Article 19(1)(a).Argument that it does not exist is fallacious especially after the judgments in RC Cooper and other cases..Shyam Divan.Since 1975, Right to Privacy has been affirmed by this Court. It is now an opportunity to consolidate the same and not regress.Argument that my body belongs to the State is symbolic of totalitarian regime.Kharak Singh has been expressly overruled by Maneka Gandhi.If there is no Right to Privacy, a large number of Fundamental Rights may be denuded..Arvind Datar.In both MP Sharma and Kharak Singh, the issue of whether privacy is envisaged in Part III or not was not in question. Ratio decidendi in both MP Sharma and Kharak Singh is not whether Right to Privacy is a Fundamental Right or not.They (Central government) 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.In 2017, for a democratic country like India to say that fundamental rights include a plethora of rights but not Right to Privacy would be paradoxical.We cannot say that we have Right to Life and Personal liberty but that right does not include Right to Privacy.The parameters on which Right to Privacy should be tested will depend on the law under challenge. Today, it is definitely a part of Articles 14, 19 and 21. Tomorrow it could be a facet of more Part III rights..Reactions from the Bench.Out of the nine judges on the Bench, Justices Rohinton Nariman and DY Chandrachud were easily the most active of the lot. Some of the questions posed by the two judges are given below..Justice DY Chandrachud.When I put myself in public realm, am I not surrendering some extent of my privacy?Right to Privacy is not necessarily co-extensive with Right to Data Protection. The latter may be wider and may need special legislation to be protected.What would be the scope of Right to Privacy? 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..Justice Rohinton Fali Nariman.Is it your argument that privacy here is much wider than the Common Law right which is largely restricted to the ‘Right to be Left Alone’? – (“Absolutely”, Gopal Subramanium responded).If there is State action against privacy, what are the parameters of challenge? (“The parameters on which Right to Privacy should be tested will depend on the law under challenge. Today, it is definitely a part of Articles 14, 19 and 21. Tomorrow it could be a facet of more Part III rights”, responded Datar).We need more assistance on parameters of challenge. Work on it tonight..Read the written submissions of Shyam Divan, Gopal Subramanium and Arvind Datar below. .Image courtesy:.Shyam Divan.Gopal Subramanium