A nine-judge Supreme Court bench and a number of lawyers held a long debate on the limits of the right to privacy on Wednesday – the outcome of which is likely to determine wether Aadhaar cards violate such a right . The bench hopes to determine whether citizens have the right to privacy under the Indian Constitution.

The court said the right was not an absolute enough to stop the government from adding restrictions, and added that violations of its provisions could only be decided on a case-to-case basis.

Some of the questions the court posed included what constitutes privacy, what it might be limited to if it were declared that Indians did enjoy such a right, and what kind of test would determine a potential infringement.

Earlier, lawyers appearing for the petitioners – Soli Sorabjee, Shyam Divan, Gopal Subramaniam and Arvind Datar – argued that the right to privacy was an integral part of Article 21 of the Indian Constitution. The article guarantees the protection of life and personal liberty, the petitioners said. Privacy is a crucial part of an individual’s fundamental rights, they argued.

Contours of the right

The second half of the hearing on Wednesday afternoon was largely spent on determining what the extent and contours of a right to privacy should be, with the judges raising a volley of questions. Justice DY Chandrachud asked how one might determine the extent and applicability of such a right, assuming it were declared applicable for persons.

“Should we just hold that privacy should just be an amorphous right with no contours of the right or the limitation? Could we say it consists certain ingredients without exhaustively defining?”

The judge said that while a link was made between personal autonomy and privacy, there are some aspects of exercising autonomy that are beyond the realm of privacy. For example, could someone claim the right to privacy and avoid state intervention if they decided not to send their children to school? “Every act of decision making is not a facet of privacy,” he said.

The judge added that if privacy is an integral part of Article 21 (liberty), then the state will have the obligation to protect it through legislation.

Chandrachud also wondered if the right to privacy should be restricted to the relation between a citizen and the state or if it should extend to the relation between two private parties. As an example, he said a state-sponsored platform such as Aadhaar could be violated by a private player. If privacy is declared a fundamental right, then what might be the extent of regulation in matters involving two private citizens?

Chief Justice JS Khehar intervened and sharpened the question: If privacy is a fundamental right, what would be a reasonable restriction on that right?

To this, lawyer Subramaniam said universal privacy is larger than specific instances. Since it coexists with liberty rather than just being a subtext, it has to be included in Part III of the Constitution, which contains the fundamental rights. “Privacy is much more than what happens in the bedroom. It involves the liberty and dignity of being a human,” Subramaniam said.

Lawyer Datar said the inclusion of privacy under fundamental rights would make it easier for citizens to seek interventions if their rights were threatened. “When it is a fundamental right, the response of the state will change,” he said.

Justice Rohington Nariman also stressed on defining boundaries of challenges to cases involving privacy, if it is part of a citizen’s fundamental rights. His colleague, Justice Chalameswar, asked if matters including sexual orientation and relationships would also be included under such a right. Chalameswar asked if a definitive right to privacy would nullify the Supreme Court judgment in the Naz foundation case, which upheld the criminalisation of homosexuality.

Past cases

Datar said past judgments that ruled against the right to privacy were stray statements that were given too much importance. Discussing the 1954 MP Sharma case that made comparisons to the Fourth Amendment in the United States Constitution (protection from unreasonable searches), judges Nariman and Chalameswar pointed out that the case in fact had more to do with the Fifth Amendment of the US Constitution (protection against self incrimination).

“We should not assume that the two cases asserted the proposition that privacy is not guaranteed under the Constitution. The government is trying to build a fortress using starry lines in the orders,” Datar said.

Lawyer Soli Sorabjee said that just because the right to privacy does not find specific mention in the Constitution, it did not mean the right does not exist. He made a comparison to the freedom of press, which is within the freedom of expression in the Constitution and is not listed separately.