Young lawyers impress SC in privacy debate

Source – timesofindia.indiatimes.com

NEW DELHI: The Supreme Court on Wednesday raised a toast to two young legal guns, who opposed giving constitutional status to right to privacy through lucid articulation of facts, case laws and illuminating deductions based on judgments of the US Supreme Court.

Two weeks ago, the SC started a debate on whether privacy is a fundamental right with a six-hour time limit but the complexity of the issue stretched the arguments, with legal stalwarts consuming most of the time to wage a bitter legal battle for and against privacy getting constitutional status.

Those who argued against privacy being inserted as a fundamental right in the Constitution were attorney general K K Venugopal, senior advocates C A Sundaram and Rakesh Dwivedi and additional solicitor general Tushar Mehta. They were opposing those advocating privacy as a fundamental right – Gopal Subramanium, Kapil Sibal, Soli J Sorabjee, Shyam Divan, Sajan Poovayya, Anand Grover and Meenakshi Arora.

Appearing after these tall lawyers, advocates Arghya Sengupta and Gopal Sankaranarayanan argued to oppose the crowded pro-privacy group of senior advocates. Given their lightweight status, both were given 15 minutes each.

But such was their finesse in analysing the cross-continental constitutional position, especially in the US, of right to privacy and the out of box thinking in projecting the undefinable nature of privacy that the bench heard them in rapt attention.

When the two finished their quota of time which had stretched to more than an hour, Justice Nariman said the two had excelled beyond expectations. Terming Sengupta and Sankaranarayanan as the tail of the lawyer group that argued against privacy being made a fundamental right, Justice Nariman said, “The tail packed a sting. Literally, it is the tail which wagged the dog.”

Sankaranarayanan said if privacy was given the cloak of a fundamental right, then all social networking sites would be prohibited from seeking personal information from users under the guise of a private contract between the platform and user. “No fundamental right can be waived because of a contract,” he said.

Sengupta said, “At its core, privacy is nothing but liberty to do or not to do something. In an advanced country like the US where right to privacy has got constitutional status, the US Supreme Court has not used right to privacy as a tool to test the validity of privacy related laws for abortion or LGBT rights. If the US Supreme Court consciously chose not to take privacy as a fundamental right, despite being enshrined in the Constitution, to test the validity of a legislation, the Indian Supreme Court must remain conscious of the pitfalls in defining an undefinable right like privacy.”