Privacy protection a losing battle, says SC; verdict likely on Aug 27

New Delhi: Voicing concern over possible misuse of personal information in public domain, the Supreme Court on Wednesday said that protection of the concept of privacy in the technological era was a “losing battle”.

A nine-judge Constitution bench, headed by Chief Justice J S Khehar, heard marathon arguments for six days over a period of three weeks and reserved its verdict on the issue whether right to privacy can be held as a fundamental right under the Constitution.

A battery of senior lawyers, including Attorney General K K Venugopal, additional solicitor general Tushar Mehta, Arvind Datar, Kapil Sibal, Gopal Subaramaniam, Shayam Divan, Anand Grover, CA Sundaram and Rakesh Dwivedi, advanced arguments in favour and against the inclusion of right to privacy as a fundamental right.

The judgement would be delivered on or before August 27 as Chief Justice Khehar, who presided over the bench, would demit the office on that day.

The bench, which favoured “overarching” guidelines to protect private information in public domain, said there was a need to “maintain the core of privacy” as the notion of privacy was fast becoming irrelevant in an all-pervading technological era.

“We are fighting a losing battle of privacy. We do not know for what purpose the information will be used. This is exactly a cause of concern,” the bench, which also comprised justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, D.Y. Chandrachud, S K Kaul and S. Abdul Nazeer, said.

Senior advocate Rakesh Dwivedi, who appeared for the Gujarat government, however, said transparency was a key component in the modern age and providing basic personal information could not be covered under right to privacy and referred to illustrations in support of his submission.

He said that commercial misuse or violation of personal information can be taken care of by the Telecom Regulatory Authority of India (TRAI) and other agencies.

The senior lawyer then referred to the Supreme Court Rules which made it mandatory for lawyers and litigants to part with various personal information like names, address, telephone number, occupation and national unique ID cards, if any, for filing a public interest litigation.

“Your lordships are marching forward with technology by seeking various personal information under the rules,” Dwivedi said, adding the Aadhaar card as an identity document was also accepted. “But, this (Aadhaar) is not mandatory,” the bench said.

SC: Privacy of HIV patients is important

Dealing with facets of privacy, it referred to a verdict of a Georgia court and said disseminating obscene materials was not allowed, but watching them in confines of the home was protected under right to privacy. The bench said that there was a need to define the term privacy as India has become a “knowledge-based economy” and has nearly 1.4 billion people whose personal data was in public domain.

It said the core of privacy needed to be protected and should not be surrendered and referred to an illustration saying the number of HIV+ve patients could be ascertained, but their identity had to be protected.