{"id":606,"date":"2018-01-18T07:40:29","date_gmt":"2018-01-18T07:40:29","guid":{"rendered":"http:\/\/www.wakilsahab.in\/news\/?p=606"},"modified":"2018-01-18T07:40:29","modified_gmt":"2018-01-18T07:40:29","slug":"right-to-privacy-can-t-be-absolute-may-be-regulated-supreme-court","status":"publish","type":"post","link":"https:\/\/www.wakilsahab.in\/news\/right-to-privacy-can-t-be-absolute-may-be-regulated-supreme-court\/","title":{"rendered":"Right to privacy can\u2019t be absolute, may be regulated: Supreme Court"},"content":{"rendered":"

Source<\/strong> –\u00a0hindustantimes.com<\/strong><\/p>\n

A rare 9-judge bench of the Supreme Court said the right to privacy is not absolute, making its first observations on Wednesday as it began hearing on an issue that could have a sweeping impact on issues such as the Aadhaar scheme and the law criminalising homosexuality.<\/p>\n

Led by the Chief Justice of India JS Khehar, the Constitution bench said that if right to privacy is defined as a fundamental right, the top court\u2019s 2013 ruling upholding Section 377 \u2014 which criminalises homosexuality \u2014 \u201cfalls\u201d.<\/p>\n

The bench began the process to decide if privacy can be regarded as a fundamental right guaranteed to all Indians, a question that arose from the legal challenge to the Aadhaar programme that activists say impinges on the right to privacy.<\/p>\n

\u201cIf privacy is about right to make a choice, then choice in what areas? Family, sexual orientation, gender identity, surveillance, what all?\u201d it observed.<\/p>\n

The judges will revisit previous rulings by the Supreme Court\u2014 one by an eight-judge bench in 1954 and the other by a six-judge bench in 1962 \u2014 to study if they were the correct interpretation of constitutional provisions. Both rulings rejected the idea that privacy was a fundamental right.<\/p>\n

Privacy was one of the grounds on which the Delhi High Court had struck down Section 377 in 2012, but its ruling was overturned by the Supreme Court a year later. A curative petition against the ruling filed by NGO Naz Foundation has raised the issue of right to privacy afresh.<\/p>\n

\u201cIf yes (i.e. if right to privacy is a fundamental right), then Naz Foundation (ruling) falls,\u201d Justice DY Chandrachud \u2013a member of the bench \u2013 said to the lawyers who argued privacy was a facet of liberty, which the Constitution guarantees.<\/p>\n

In addition to the Section 377 case, the SC\u2019s ruling on privacy will impact a case against mobile communication application WhatsApp in which petitioners have opposed its policy to share user data with its parent Facebook.<\/p>\n

Based on a ruling by this bench, a separate bench of three judges will decide on petitions that challenged the government\u2019s decision to make Aadhaar compulsory for crucial procedures such as Income Tax declarations and for opening bank accounts.<\/p>\n

\u2018NEED TO DEFINE PRIVACY\u2019<\/strong><\/p>\n

During the hearing the bench felt that right to privacy was too \u201camorphous\u201d a term and said that to recognise privacy as a definite right, it had to first define it.<\/p>\n

\u201cHow do we define privacy? What are its contents? Its contours? How can the State regulate privacy? What obligations does the State have to protect a person\u2019s privacy?\u201d Justice Chandrachud asked the lawyers representing petitioners in Aadhaar case. An attempt to define the right to privacy may cause more harm than good, the bench said.<\/p>\n

The observations may or may not be a part of the court\u2019s final ruling.<\/p>\n

Justice Chandrachud also posed several questions on data protection in the age of social media, saying social media did not exist when the Constitution was made. \u201cIf people have put themselves in the public realm using technology, is that not a surrender of their right to privacy?,\u201d the judge said, asking if right to privacy is non-negotiable.<\/p>\n

Earlier, former Attorney General Soli Sorabjee called government\u2019s argument that privacy is not sacred because the Constitution does not mention it as fallacious. \u201cIt does not signify that the right does not exist,\u201d he told the court in a brief submission. Sorabjee reminded the bench that even freedom of press was denuded from other fundamental rights given in the Constitution.<\/p>\n

Senior advocate Shyam Divan placed before the bench a statement made by a minister in March admitting privacy was \u201cprobably a fundamental right\u201d and \u201cpart of individual liberty.\u201d The statement was made during the presentation of the Aadhaar Bill in Parliament.<\/p>\n

Divan said in the internet age, one should have the right of \u201cinformational self-determination\u201d. \u201cI should know how much I should put forward and not be compelled,\u201d he submitted.<\/p>\n

He complained there was hardly any data protection in this digital age, leading to a compromise in privacy.<\/p>\n

Former solicitor general Gopal Subramanium said right to liberty and lead a life of dignity includes the right to privacy.<\/p>\n

\u201cThe right to liberty means the right to make personal choices, the right to develop one\u2019s personality, one\u2019s aura, one\u2019s thinking and actions, the freedom of religion and conscience, the freedom to believe or not believe,\u201d he told the bench, which will continue hearing the case on Thursday.<\/p>\n

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