The Supreme Court hearing on the right to privacy began today. The bench recessed and will continue tomorrow, but the Justices in conversation with the petitioner lawyers seemed to consider the need for an assertion of privacy. Whether it will take the shape of a fundamental right however, remains an open question as they will continue to listen to arguments tomorrow.
The impact of the privacy ruling would be wide-ranging. If the bench rules that Indians have no fundamental right to privacy, it could authorize a variety of government actions against the privacy of homes, vehicles, individual frisking, phone data collection, and more.
3:40 pm
Justice Chandrachud notes that complete autonomy and privacy not possible - for example in deciding whether to send a child to school. Says that privacy may be a "small component" of liberty.
3:20 pm
Asks Justices to "lift the cloud" over the various past judgements by asserting a clear right to privacy. Asserting it as a fundamental right would guarantee Indian citizens real protections.
3:00 pm
Advocate Datar says it will be paradoxical to insist that the Constitution guarantees 40 other rights but not privacy.
2:45 pm
Justices discussing 4th amendment cases in the US, that asserted privacy protections.
2:30 pm
Divan adds that power of other citizen rights would be denuded, without an asserted right to privacy.
2:20 pm
Justices question Divan on his request that the right to privacy be asserted in Part III of the Constitution, as a fundamental right. Divan says its necessary to limit State control and violation of this right.
2:15 pm
Supreme Court Justice Dhananjaya Chandrachud notes that in the age of big data, "the State must regulate its aspects." That all parts of customer information cannot be considered protected.
Divan agrees but says that the right to privacy is not absolute, but an assertion of the basic right needs to be laid down by the Court.
2 pm
Divan: Two generations of Indians have grown up accepting that privacy is a fundamental right. We cannot set the clock back now.
1 pm
The bench breaks for lunch. To be continued from 2 pm.
12:50 pm
Divan distinguishes the fundamental right to privacy from the rulings on search and seizure by police, on suspicion of criminal activity. It's a tightrope walk here. Narco analysis was outlawed in a case on grounds of mental privacy.
12:45 pm
Divan notes that Article 21, which guarantees life and personal liberty, is the cornerstone that makes the Constitution a living document.
12:40 pm
Divan: "There are fourteen such judgments, in an unbroken line, that have held that privacy, or an aspect of it, is a fundamental right." He argues that these mark fundamental righs as evolving, and embracing privacy.
12:37 pm
Divan cites Gobind vs State of Madhya Pradesh, the first Indian case that recognized a fundamental right to privacy in 1975. Mentions additional such cases from 1994, 1997 and 1998.
Articles 14, 19 and 21, form a golden triangle that guarantees the right to privacy. This right, Divan argues, "is also part of India's international obligations."
12:35 pm
In a nod to liberal thought in the developed world, which says laws need to adapt to changing societies, Divan calls the Constitution a "living document".
12:32 pm
You cannot compel an individual to give up their personal information, Shyam Divan says. "Compelled speech" violated the right to privacy.
12:30 pm
Privacy includes the right to be left alone, freedom of thought, freedom to dissent, bodily integrity, informational self-determination (referring to the compulsory collection of Aadhaar)
12:25 pm
Advocate Shyam Divan makes continuing arguments. "We have an unbroken line of decisions since 1975 recognizing the right to privacy."
12:15 pm
Soli Sorabjee continues for the petitioners. Says, the fact that no express right to privacy is mentioned in the Constitution does not mean that it doesn't exist.
Article 19(1)(a) does not guarantee a freedom of the press. But it can be deduced from free speech, which courts have done.
12:10 pm
Subramaniam is now reading passages from various judgements to strengthen his argument of Justices, at various times, defending privacy rights for citizens.
12:00 pm
"Article 21 makes the dignity of a citizen enforceable against the State. This means all shades of dignity, including privacy", says Gopal Subramaniam, "Every democratic country sanctifies domestic life... nothing is more deleterious (to this) than a calculated interference with privacy."
11:30 pm
Lawyer Gopal Subramaniam, representing the petitioners, has begun arguments before the Supreme Court, saying that, "Privacy is the essence of liberty". Privacy is not...a right in the shade of other rights. Gopal Subramaniam argues that freedom of thought, guaranteed by the Constitution, is not possible without the right to privacy.
"Recognize what is already there (in the Constitution)" Gopal Subramaniam says in his argument.
The minutes above have been compiled from the tweets and reports of the lawyers Gautam Bhatia and Prasanna S, who were present at the hearing.
