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Privacy Your Fundamental Right: Legal Provisions Invoked in Historic Case

Primarily the Articles involved were Article 19 of the Constitution and the reasonable restrictions that follow and Article 21 dealing with Right to Life.

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Updated:August 24, 2017, 11:06 AM IST
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Privacy Your Fundamental Right: Legal Provisions Invoked in Historic Case
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New Delhi: In a historic verdict, a 9-judge bench ruled in favour of right to privacy being an Indians fundamental right.

This entire hearing saw a battery of lawyers arguing for the petitioner and the respondent. This including legal eagles such as Gopal Subhramaniam, Shyam Diwan, Kapil Sibal, Arvind Datar and Attorney General KK Venugopal.

Primarily the Articles involved were Article 19 of the constitution and the reasonable restrictions that follow and Article 21 dealing with Right to Life.

The basic premise of the case was to re-look at the MP Sharma and Kharak Singh cases which were earlier heard by a eight and six judges bench respectively at the Supreme Court and which had struck down the prayer for ruling right to privacy as a fundamental right. Another significant argument from the petitioner has been that Gopal Subhramaniam appearing for the petitioner said that right to life extends beyond mere animal existence. The counsels have stated that Article 21 needs to be read with other fundamental rights such as Article 14 and 19 of the Constitution.

The petitioners have stated that the dissenting verdict of Justice Subba Rao was actually the correct verdict when compared to the majority.

Justice Rao had then gone on to say in Kharak Singh case that “freedom of movement in clause (d) therefore must be a movement in a free country i.e. in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control.”

It was this case where in the minority verdict he also stated that the shadow of surveillance is complete deprived of the freedom under Article 21.

Shyam Diwan appearing for the petitioners has stated that after the Maneka Gandhi verdict, a 11 judge bench in the RC Cooper case reinterpreted Article 21 broadly and declared that the expression 'personal liberty' in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been made distinct fundamental rights in Article 19.

Soli Sorabjee, arguing for the petitioners, also said that the fact that privacy is not explicitly laid out doesn't mean the right doesn't exist.

He argued that the freedom of press has been derived from Article 19 and, similarly, the right to privacy can be derived broadly. It flows in the Constitution.

The petitioners have also put worth an argument that Article 21 is linked with Article 14 and 19 and cannot be read in isolation. “If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned,” argued Arvind Datar.

Article 19(2) deals with reasonable restrictions like public order, morality, etc that works when law has to be prevented from being misused.

The petitioners have also contended that right to life includes right to live with human dignity. When it was argued that Right to privacy was not expressly mentioned in the constitution, the petitioners stated, “It is submitted that the right to privacy emanates from conjoint reading of the golden triangle of article 14, 19 and 21 of the constitution. It is submitted that many of the fundamental rights guaranteed under Part III of the constitution cannot be enjoyed to the fullest, in the absence of fundamental right to privacy,” submitted the petitioners.

Now to rebut the above points on similar legal provisions, the Centre through Attorney General, KK Venugopal, first of all had conceded at that there certainly existed a ‘fundamental right to privacy with limitations.’ This was a complete U-turn from what the then Attorney General Mukul Rohatgi had stated in the court that there was no right to privacy.

Citing the R. Rajagopal case, the Centre has argued that once something becomes a matter of public record, then one can claim no right to privacy.

“Right to privacy cannot be claimed if every information is already in the public domain and information has already been parted with,” submitted KK Venugopal.

The Centre has mainly argued on the basis of Article 21. It has stated that it carries on schemes to undertake welfare measures and channel schemes for the poor which comes under Article 21, right to life. Thus, a claim to privacy “would destroy the basic foundation of the Constitution.)

Centre has agreed that right to privacy does form a part of the larger genus of liberty, but when there is an option between right to life and right to liberty, the former takes a front seat. Hence, eliminating it from the broader fold of Article 21.

Lastly, the centre has also argued that a vague and amorphous concept such as right to privacy cannot be a fundamental right so as to deprive a large section of the population of their fundamental and human rights. “In a developing country where millions struggle for the basic necessities of life, one cannot demand for right to privacy,” argued the Centre.
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