The Supreme Court on Thursday observed that it may have erred in its decision in the 1954 MP Sharma case in which it had said that the Constitution did not recognise the right to privacy. The nine-member constitution bench ruled that the judgment had failed to consider the Universal Declaration of Human Rights passed by the United Nations General Assembly in December 1948– a declaration which India signed.

Lawyers Soli Sorabjee, Shyam Divan, Gopal Subramaniam and Arvind Datar concluded their arguments for the petitioners in the Aadhaar hearing in the Supreme Court on Thursday. Attorney General KK Venugopal will present the submissions for the Centre on Tuesday.

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

Justice Rohington Nariman said that in the MP Sharma case, which the Centre has cited to oppose right to privacy, was “hit” by the omission of UDHR, which was very much in force in 1954.

He made this comment in response to the petitioners arguing that India had an international obligation to incorporate right to privacy into its laws. The Indian Constitution says that the nation has to honour international treaties that do not contradict its basic structure. The UDHR and the International Covenant on Civil and Political Rights recognises the element of right to privacy.

International Law

Senior lawyer Anand Grover had argued that in Vishaka vs State of Rajasthan, the Supreme Court had held that in the absence of a specific domestic law, the international law could be applied in cases where Indian has been a signatory of a particular treaty. This means the right to privacy, part of international declarations like the International Covenant on Civil and Political Rights, could be read into fundamental rights of the Indian Constitution.

Chief Justice JS Khehar said that a violation of this right could be termed termed coercion or compulsion to disclose something that is bothersome to the individual disclosing it. Khehar said liberty and dignity could be considered as two levels with privacy as the middle step. The chief justice rejected the petitioner’s plea that liberty be considered to be unfettered.

Digital privacy, secrecy and anonymity

Lawyer Sajjan Povaiyya, appearing for Rajya Sabha MP Rajeev Chandrashekar, said in an era of big data, digital privacy has become as important as physical privacy and the state had the obligation to protect both.

This led to several questions from the bench. Justice SA Bobde wondered whether a violation of privacy could be claimed at the stage of data collection or only when it was misused.

Justice DY Chandrachud questioned the extent of an individual’s right to remain anonymous. He also asked if the state collecting information to fight and curb terrorism could also be termed as violation of privacy.

To this, the lawyer argued that the test has to be the purpose for which the data was collected. The state should not be allowed to go beyond the state purpose. If done, it would be a violation.

When Justice Bobde pointed out that at least 80% of the internet is now in the “dark web” territory which is beyond surveillance, the lawyer said when right go unprotected, it leads to proliferation of elements like dark web. “There is a reason why most proxy servers are in Russia,” he added.