#RightToPrivacy: Datar, Grover, Poovayya, Meenakshi Arora argue on Day 2
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#RightToPrivacy: Datar, Grover, Poovayya, Meenakshi Arora argue on Day 2

Murali Krishnan

The hearing in the case on Right to Privacy resumed today before the 9-judge Bench (Justice KS Puttaswamy (Retd.) & Anr. v. Union of India & Ors ) of Supreme Court, with the petitioners continuing to make their submissions.

Senior Advocates Arvind Datar, Anand Grover, Sajan Poovayya and Meenakshi Arora have made their submissions so far.

Today’s hearing witnessed one interesting aspect as regards the nature of the Right to Privacy – whether it is horizontal and thus enforceable against private parties. Justice Chandrachud observed,

“If there is a Right to Privacy which is horizontal and is actionable against the world at large and not just the State, then the immediate consequence would be an obligation on the State to enact a law to regulate private players to ensure that rights are protected.”

Below are the excerpts of the arguments:

Arvind Datar

  • The Contours of privacy will have to be decided on a case to case basis.
  • MP Sharma and Kharak Singh do not lay down that there is no Right to Privacy.
  • Privacy is not at the periphery of Part III rights

Anand Grover

  • Kharak Singh has been expressly overruled by Maneka Gandhi.
  • Defining privacy would be difficult; Your Lordships may indicate what all it can compose of like in Keshavananda Bharati.
  • For Right to Privacy against non-State actors/private players, States will have to enact regulatory framework.
  • Privacy already finds recognition in Indian Penal Code – Voyuerism and Stalking.
  • Privacy is necessary to protect liberty. Don’t limit the contours of privacy, but indicate its facets.

Sajan Poovayya

  • Each of the freedoms in Article 19 manifests Right to Privacy.
  • Both in mobile and internet connections, India is ahead of even USA. But this Court has never sat to consider what would be the impact of leak of data in digital world.
  • Even in case of contractual rights, where data is purely commercial in nature, the same can be used only for the purpose specified in the contract. So when State collects data, it should specify the purpose for collecting it and use it only for that particular purpose.

  • All of us put out a lot of personal information in public domain. Does that mean we have surrendered our privacy? No.

  • Simply because my information is in public domain does not mean I don’t have Right to Privacy. Whether I am in my bedroom or walking along Barakhamba Road I have a right against surveillance by State.

  • Secrecy is never a prerequisite for privacy. For example, those who disclose certain personal details to banks need not presume that the same will be disclosed by banks to other persons for other purposes.

  • Can the State say that it could not maintain law and order because it did not have enough policemen? No. Similarly, if the State does not have technological wherewithal to protect data collected, then don’t collect it at all.

  • United Kingdom destroyed electronic data collected from citizens through legislation because it felt it did not have necessary technology to control and secure it.

Meenakshi Arora

  • Stray observations in the judgment in MP Sharma about the lack of a right of privacy were inaccurate and needs to be clarified as obiter and not a proposition against the Right to Privacy.
  • Kharak Singh v. State of UP overruled by RC Cooper v. Union of India and Maneka Gandhi v. Union of India.
  • Fali Nariman, in his book, ‘Before Memory Fades’ has written about the impact of emergency, especially on lawyers. We all know the impact of State surveillance from examples like Nazi Germany.
  • If we don’t have privacy in our Constitution, history tells us about its consequences.

The petitioners have concluded their arguments. Attorney General KK Venugopal will begin his arguments for Central government on Tuesday next week.

For a summary of yesterday’s pre-lunch submissions, read this article. What transpired in Court in the second half can be read here.

Written submissions by Senior Advocate Sajan Poovayya

Written-Submissions-v2-19072017-watermark.pdf
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Written submissions by Senior Advocate Anand Grover

Written-Submissions-Anand-Grover-watermark.pdf
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Written submissions by Senior Advocate Meenakshi Arora

Meenakshi-Arora-1-watermark.pdf
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Image of Anand Grover taken from here.

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