“Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined”
-Nicholas Colabella J. of the New York Supreme Court, in Gordon v Marrone.
The above statement vividly describes what has come to be called a SLAPP suit – Strategic Lawsuit Against Public Participation. The term was coined by University of Denver Professors Penelope Canan and George Pring in their book ‘SLAPPs: Getting Sued for Speaking Out’. SLAPPs are generally characterized by deep-pocketed individuals or entities pursuing litigation as a way of intimidating or silencing their critics.
The suit likely may have no merit, but the objective is primarily to threaten or coerce critics into silence, or in the alternative, impose prohibitive costs on criticism. SLAPPs also have the effect of suppressing reportage about initial claims. Even if defendants win a lawsuit on merits, it would be at an immense cost in terms of resources. This experience is likely to deter them, and others from speaking out in the future. Faced with an uncertain legal process, defendants are also likely to seek settlement. While this allows them to avoid an expensive process, it usually entails them having to abandon their opposition as well. By in effect chilling citizen participation in government, SLAPP suits strike at the heart of participatory democracy.
SLAPPs have also come to be employed in India, in a number of instances. These are usually large corporates, powerful individuals, and even private universities, dragging media houses and journalists, or academics to Court for unfavorable reportage. Recent instances indicate that SLAPPs can also be employed by influential people accused of sexual assault or harassment. The aim appears to be to suppress media coverage, and deter victims from publically speaking out.
Defamation suits tend to be the weapon of choice for SLAPPs. In India, where defamation can also be a criminal offence, this can be a particularly effective strategy, especially since it may be pursued concurrently with a civil claim. Another tactic to make the process more punitive, is to file the suit in a remote, inconvenient location where the offending publication may have been made available. In the context of the internet, this could theoretically be anywhere.
There have not been many instances where the judiciary have demonstrated awareness of this phenomenon. In Crop Care Federation of India v. Rajasthan Patrika, reports had been published in the Rajasthan Patrika about the harmful effects of pesticides. Crop Care Federation of India, an industry body of pesticide manufactures, sued the newspaper and its employees for allegedly defaming its members. In response, the defendant filed an application for the rejection of plaint, under Order 7 Rule 11 of the Code of Civil Procedure, 1908. It was argued that the plaintiff was an association of manufacturers, and not a determinate body, which was a necessary requirement to constitute a cause of action in a defamation suit. Justice Ravindra Bhat dismissed the suit on the above ground but also explicitly called out the petitioner’s suit as a SLAPP, with a reference to Justice Nicholas Colabella’s dictum in Gordon v. Marrone. He went on to note that, “in such instances the plaintiff’s goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate.”
Several jurisdictions have enacted ‘anti-SLAPP’ legislations in an attempt to protect defendants from such practices. Broadly, such legislations provide the defendant an opportunity to seek dismissal of the suit early in the proceedings. In most anti-SLAPP statutes in the United States, if the defendant demonstrates that the statements were within the exercise of free speech, and on matters of legitimate public interest, the burden shifts onto the plaintiff to establish a probability of success of their claims. Failing to do so would lead to a dismissal, with the petitioner having to compensate the defendant’s legal costs. Typically, the discovery process is halted while the motion is being adjudicated upon. This further mitigates the financial toll that the proceedings might otherwise take.
In a similar vein, one of the recommendations in India has been to introduce procedure into Order 7 Rule 11 that allows suits that bear the mark of a SLAPP to be summarily dismissed. Broader reforms to the law of defamation may also limit the impact of SLAPPs. It has been proposed that Sections 499 and 500 of the Indian Penal Code, 1860, which criminalize defamation, should be repealed. It is widely held that, despite the Supreme Court’s contrary view, the imposition of penal consequences for defamation runs counter to the free speech ideals enshrined within our Constitution. There are also suggestions to codify civil defamation, with higher thresholds for statements regarding public officials or public figures, as well as a stricter requirement of demonstrating harm. There are also proposals to allow for corrections and apologies to be offered as remedy, and for damages designed to be primarily restorative, and not punitive.
According to Pring and Canan, SLAPPs are a way for petitioners to transform a “a public, political controversy into a private, legalistic one.” Defamation, and SLAPP suits in general, have become a tool to deter public scrutiny and criticism of those in power. Drawing reasonable inferences from fact is essential to the functioning of the press, and the internet has provided citizens an avenue to express their opinions and grievances. Both are likely to limit the legitimate exercise of their free speech if they run the risk of being dragged to court to mount a legal defense for their claims. Our legal framework seeks to deliver justice to all, but must also be cognizant of how it may be subverted towards nefarious ends.
 Penelope Canan and George Pring, SLAPPs : Getting Sued for Speaking Out (Temple University Press, 1996).
 Id., at 10.
Written by the Civil Liberties team at CCG
A 9 judge bench of the Supreme Court of India passed a landmark judgment two weeks ago, which unanimously recognized the right to privacy as a fundamental right under the Constitution of India. The Court found the right to privacy to be a part of the freedoms guaranteed across fundamental rights, and an intrinsic aspect of dignity, autonomy and liberty.
In 2012, a petition was filed before the Supreme Court by Justice K. S. Puttuswamy (Retd.), challenging the validity of Aadhaar. During the course of the hearings, the Attorney General argued that the Supreme Court in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962) had found that there was no fundamental right to privacy in India, because of which its position in the Indian Constitution was debatable. As a consequence, the Court in its order on August 11, 2015 referred the question to a Constitution bench of the Supreme Court. Last month, the Constitution bench decided to refer the matter to a 9 judge bench, in view of M.P. Sharma and Kharak Singh being decided by an 8 judge bench, and a 6 judge bench respectively. A timeline of events, from the filing of the petition, to the constitution of the 9 judge bench, may be found here.
During the proceedings, the petitioners broadly argued that M.P. Sharma, and Kharak Singh were no longer good law; that privacy was an essential component of liberty, dignity and other core aspects of the Constitution; and the fundamental right to privacy could be located in a combined reading of the rights under Part III of the Constitution. Further, they argued that India’s international obligations presented an imperative to recognize the right. The respondents argued, among other things, that privacy was a vague concept, of which only certain aspects could be elevated to the status of a fundamental right, if at all. They argued that the right could be protected through the common law, or by statute, and did not need the protection of a fundamental right. Further, that the right to life, and the concomitant duty of the state to provide welfare, must trump privacy. An index of our posts reporting the arguments is also available below.
The petition and reference posed some critical questions for the Court. The Court had to evaluate whether privacy, as argued, was just an alien, elitist construct unsuitable to India, or a necessary protection in a digital age. It was further tasked with defining its safeguards and contours in a way that would not invalidate the right. Chinmayi Arun’s piece specifically addresses these concerns here.
Fortunately, the Supreme Court also has an illustrious history of recognizing and upholding the right to privacy. The Centre for Communication Governance recently published an infographic, illustrating the Court’s jurisprudence on the right to privacy across 63 years.
The Court eventually decided on an expansive articulation of the fundamental right to privacy. However, the judgment raises a few crucial implications. We at the Centre for Communication Governance have presented our analysis of the judgment in various news media publications. Chinmayi Arun, our Research Director, has presented her views on the judgment as part of a panel of experts here, and in an interview, here. She also argues that the Court seems to have left a significant leeway, presumably for intrusion by the state. Smitha presents a detailed assessment of the implications of the right to privacy here. The judgment has also been lauded for its critique of the Suresh Kumar Koushal v. NAZ Foundation, which recriminalized consensual same-sex intercourse. As Arpita writes here, a strong formulation of the right to privacy, with its close connection to bodily integrity, can forge a more progressive expression of the rights of women and sexual minorities.
While the judgment is a step forward, its effect and implementation are yet to be seen. Recently, in the ongoing matter of Karmanya Singh v. Union of India (WhatsApp data sharing case), the Puttaswamy judgment was visited. Following from the judgment, the petitioners argued that the state should protect an individual’s right to privacy even when it is being infringed by a non-state actor.
Reports of arguments made before the Supreme Court:
Today, the Supreme Court heard the ongoing matter of Sabu Mathew George vs. Union of India. In 2008, a petition was filed to ban advertisements endorsing sex-selective abortions from search engine results. Advertisements endorsing sex selective abortions are illegal under Section 22 of the PNDT Act (The Pre-conception and Pre-natal Diagnostic Techniques Act), 1994 Act. Several orders have been passed over the last few years, the last of which was passed on April 13th, 2017. Following from these orders, the Court had directed the Centre to set up a nodal agency where complaints against sex selective ads could be lodged. The Court had also ordered the search engines involved to set up an in-house expert committee in this regard. The order dated April 13th stated that compliance with the mechanism in place would be checked hereinafter. Our blog posts covering these arguments and other issues relevant to search neutrality can be found here and here.
Today, the petitioners counsel stated that the nodal agency in question should be able to take suo moto cognisance of complaints, and not just restrict its functioning to the method prescribed previously. Currently, individuals can file complaints with the nodal agency, which will then be forwarded to the search engine in question. The relevant part from the order (16/11/16) is as follows:
“…we direct that the Union of India shall constitute a “Nodal Agency” and give due advertisement in television, newspapers and radio by stating that it has been created in pursuance of the order of this Court and anyone who comes across anything that has the nature of an advertisement or any impact in identifying a boy or a girl in any method, manner or mode by any search engine shall be brought to its notice. Once it is brought to the notice of the Nodal Agency, it shall intimate the concerned search engine or the corridor provider immediately and after receipt of the same, the search engines are obliged to delete it within thirty-six hours and intimate the Nodal Agency. Needless to say, this is an interim arrangement pending the discussion which we have noted herein-before…”
On the respondent’s side, the counsel stated that over the last few months, Microsoft had only received one complaint and Yahoo had not received any complaints, arguing that the nodal agency would not have to take on a higher level of regulation. Further on the issue of suo moto cognisance, they stated that it would be untenable to expect a government agency to ‘tap’ into search results. As per the counsel, the last order had only contemplated checking with the compliance of the nodal agency system, and with constituting an expert committee, all of which had been established.
The petitioners stated that they would need more time and would suggest other measures for effective regulation.
The next hearing will take place on the 24th of November, 2017.
“Nine judges of this Court assembled to determine whether privacy is a constitutionally protected value. The issue reaches out to the foundation of a constitutional culture based on the protection of human rights and enables this Court to revisit the basic principles on which our Constitution has been founded and their consequences for a way of life it seeks to protect. This case presents challenges for constitutional interpretation. If privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.”
Nandan Nilekani has recently made news cautioning against ‘data colonization’ by heavyweights such as Facebook and Google. He laments that data, which is otherwise a non-rival, unlimited resource, is not being shared freely, and is being put into silos. Not only does this limit its potential uses, users end up with very little control over their own data. He argues for ‘data democracy’ through a data protection law and particularly, one that gives users greater privacy, control and choice. In specific terms, Nilekani appears to be referring to the ‘right to data portability’, a recently recognized concept in the data protection lexicon.
In the course of using online services, individuals typically provide an assortment of personal data to service providers. The right to data portability allows a user to receive their data back in a format that is conducive to reuse with another service. The purpose of data portability is to promote interoperability between systems and to give greater choice and control to the user with respect to their data held by other entities. The aim is also to create a level playing field for newly established service providers that wish to take on incumbents, but are unable to do so because of the significant barriers posed by lock-in and network effects. For instance, Apple Music users could switch to a rival service without having to lose playlists, play counts, or history; or Amazon users could port purchasing history to a service that provides better recommendations; or eBay sellers to a more preferable platform without losing their reputation and ratings. Users could also port to services with more privacy friendly policies, thereby enabling an environment where services must also compete on such metrics.
The European Union’s General Data Protection Regulation (GDPR) is the first legal recognition of the right to data portability. Art. 20(1) defines the right as follows:
“The data subject shall have the right to receive the personal data concerning him or her, which he or she has provided to a controller, in a structured, commonly used and machine-readable format and have the right to transmit those data to another controller without hindrance from the controller to which the data have been provided”
Pursuant to this right, Art. 20(2) further confers the right to directly transmit personal data from one controller to another, wherever technically feasible.
The first aspect of the right to data portability allows data subjects to receive their personal data for private use. Crucially, the data must be a in a format necessarily conducive to reuse. For instance, providing copies of emails in pdf format would not be sufficient. The second aspect is the ability to transfer data directly to another controller, without hindrance.
There are certain prerequisites for the applicability of this right:
a) it applies only to personal data that the data subject ‘provided’ to the controller. This would include data explicitly provided (such as age, or address, etc., through online forms), as well as data generated and collected by the controller on account of the usage of the service. Data derived or inferred by the controller would not be within the scope of this right.
b) the processing must be pursuant to consent or a contract. Personal data processed for a task to be performed in public interest, or in the exercise of official authority is excluded.
c) the processing must be through automated means. Data in paper files would therefore not be portable.
d) the right must not adversely affect the rights and freedoms of others.
The GDPR does not come into force till May 2018, so there remain ambiguities regarding how the right to data portability may come to be implemented. For instance, there is debate about whether ‘observed data’, such as heartbeat tracking by wearables, would be portable. Even so, the right to data portability appears to be a step towards mitigating the influence data giants currently wield.
Data Portability is premised on the principle of informational self-determination, which forms the substance of the European Data Protection framework. This concept was famously articulated in what is known as the Census decision of the German Federal Constitutional Court in 1983. The Court ruled it to be a necessary condition for the free development of one’s personality, and also an essential element of a democratic society. The petitioners in India’s Aadhaar-PAN case also explicitly argued that informational self-determination was a facet of Art. 21 of the Indian Constitution.
Data portability may also be considered an evolution from previously recognized rights such as the right to access and the right to erasure of personal data, both of which are present in the current Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. TRAI’s recent consultation paper on Privacy, Security and Ownership of Data in the Telecom Sector also refers to data portability as a way to empower users. The right to data portability may be an essential aspect of a robust and modern data protection framework, and India is evidently not averse to taking cues from the EU in this regard. As we (finally) begin to formulate our own data protection law, it may serve us well to evaluate which concepts may be suitably imported.
Yesterday, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing yesterday’s hearings can be found here. Today, the hearing concluded with arguments advanced on behalf of the states of Rajasthan and Haryana along with the Centre for Civil Society and the TRAI and with a rejoinder from the petitioners. Today’s hearings have been divided into two posts, the first post can be found here.
Counsel Gopal Shankarnarayan appeared for the Centre for Civil Society.
Mr. Shankarnarayan commenced his arguments by stating that the judgments of M.P. Sharma and Kharak Singh were correct and that there is no fundamental right to privacy.
He stated that following from the petitioner’s arguments, Cooper’s overruling of Gopalan would be erroneous. He also stated that 96 judgments between 1950 and 1970 had not used that parameter.
He then discussed the consequences of allowing for a fundamental right to privacy. He started by asking how such a right would be tested, stating that there would be a different test in each Article.
He then remarked upon the fact that ‘persons’ were protected under Article 19 and ‘citizens’ were protected under Article 14. He stated that if one was to blindly accept the standard in Maneka Gandhi case, that all rights flow freely into each other, then the position of non-citizens would be unsure. He also stated that there was a necessity to understand the difference between persons and citizens in the context of the Gopalan and Maneka judgments.
He discussed a case, Munn vs. Illinois and then stated that the right to privacy was flowing from Article 21. He also stated that life and personal liberty could be subject to expansive interpretation.
He then stated that the argument that MP Sharma and Kharak Singh do not deal with privacy, and could be sustained. He also stated that only certain aspects of privacy could be elevated to the level of a fundamental right.
Mr. Shankarnarayan stated that privacy could be conceptualized as being broader than what was being argued.
He then went on to discuss medical privacy. Referring to pre-natal sex determination, he stated that privacy could not be claimed if there was a competing issue with the PNDT Act, for instance. He also discussed the ‘right to refuse care’ in this context.
He stated that large aspects of privacy had already been covered by statutory provisions. He mentioned the DNA profiling bill and the CrPC.
Referring back to the consequences of a fundamental right, he stated that such a right could not be waived under any circumstances. He stated that the doctrine of waiver could not be introduced in the Indian Constitution. He substantiated this claim by referring to the case of Basheshar Nath vs. CIT.
At this point, Justice Bobde asked if there were fundamental rights that could be waived, to which Mr. Shankaranarayan responded in the negative.
Mr. Shankaranarayanan then stated that the assumption was that if a separate right to privacy did not exist, there would only be statutory protections. He said that this wasn’t the case as privacy would still be provisionally recognized.
Referring back to the respondent’s arguments about pitting the right to life of others vs. the right to privacy, he stated that the majoritarian view of the ‘elite’ could not take over. Relying on the NAZ foundation judgment, he stated that the ‘miniscule minority’s rights could not be given precedence:
While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.
Arguments then turned towards discussing the import of provisions from the UDHR, he stated that not all basic principles are found in Part III of the constitution.
Mr. Shankaranarayanan concluded his arguments and Mr. Arghya Sengupta, appearing for the State of Haryana and the TRAI, commenced his arguments.
He started by referring to the doctrine of ‘purposive limitation’, which was a cardinal principle of data protection.
He then stated that the actual implementation of these principles was difficult, since the structure of these contracts allowed them to share information with other connected bodies.
Referring to Justice Chandrachud’s ‘zones of privacy’, he stated that the nature of the right was different in each zone and not just state involvement. He then stated that the Bench should not read in general fundamental rights like the petitioners were asking.
Mr. Sengupta then stated that according to his submission, privacy was the right to be left alone and denotes that ‘everyone else would have to stay off’. He concluded by stating that privacy was just the formal construct of liberty.
Referring to the case X vs. Hospital Z, he stated that the patient had the liberty to disclose or not disclose certain information and that dignity was upheld in this case.
He stated that privacy was a liberty claim and that to determine whether there was a right to privacy, there would have to be a case by case determination of whether there was a personal liberty or any other liberty and not just a claim to privacy.
He laid down a three fold test, where one would have to determine if there was a liberty interest, if this interest lied under personal liberty or any other liberty like freedom of religion and what the restrictions would be.
He discussed the right to privacy and how it could not be a ground to test legislations. Referring to the case Planned Parenthood vs. Casey, He then stated that privacy is not all prevalent and can only be found in liberty. He stated that the right to not disclose had no right of its own.
Referring to the Hohfeldian construct of jural opposites, he asked what the nature of the right would be, stating, ‘the right to do what?’. He mentioned that liberty would be a privilege and there would be a corresponding right to stay off.
He then briefly discussed the Auto Shankar case in the context of reasonable restrictions.
The arguments then turned towards discussing the nature of a right to privacy and how it would be overbroad and could therefore not be introduced.
Justice Bobde clarified that under Hohfeld’s structure, it would be the power to stay off, not the right.
Lastly, Mr. Sengupta stated that data protection was a horizontal issue and vastly complex, and was not the same as a privacy concern. Mr. Sengupta concluded his arguments and the petitioners commenced their rebuttal, starting with Senior Counsel Gopal Subramaniam.
The senior counsel stated that as per Keshavnanda Bharati vs Union of India, the social good and welfare argument was rejected. He stated that the minority opinion infused meaning.
He then stated that constitutional words were not restrictive, and there had to be a sense of fullness while interpreting them. Mr. Subramaniam went on to state that life and liberty came from Descartes, Mill and Rousseau and not merely from the Magna Carta as mentioned by the respondents.
He also referred to the incidents that took place after the Second World War, stating that nothing could be done by which liberty would be diminished.
On the Gopalan principle, he stated that it was followed by Justice Ray in Keshavnanda Bharati and was also followed in Kharak Singh. He also remarked upon its use in the Indira Gandhi case. He then referred to Justice Khanna’s opinion on inalienable rights and that the right to courts could never be taken away.
He also discussed the Maneka Gandhi and Minerva Mills judgment, remarking on the nature of inalienable rights in them.
On the matter of privacy, he stated that ‘private choices’ had been discussed in the Maneka Gandhi judgment and ‘dignity’ was used in the Keshavnanda Bharati judgment.
He then discussed to the status of privacy in other jurisdictions, referring to the standard in South Africa where privacy, dignity and liberty were held to be intertwined.
The senior counsel lastly mentioned a passage from Keshavnanda Bharati, referring to Chief Justice Sikri’s opinion on the republic also importing Article 14, and concluded by stating that the state was the custodian and would have to protect these rights.
Next, Senior Counsel Kapil Sibal commenced his arguments.
He started off by remarking on the unique persona of individuals and how ‘each person has moments of solitude’. He questioned where the ‘right to a private moment’ could arise from.
At this point, Justice Chandrachud questioned whether privacy was a subset of liberty. To this Mr. Sibal responded stating that it was a golden thread that ran through liberty. Justice Chandrachud asked if there was a difference. Mr. Sibal stated that privacy was more fundamental than liberty.
He then remarked on the changing nature of the state and the need for changes. Justice Chandrachud responded stating that the state’s actions will be in the protection of absolute liberty.
The senior counsel concluded his arguments and Senior Counsel Shyam Divan commenced his arguments.
The senior counsel stated that privacy encompassed many other aspects, like creativity and psychological well-being. He referred to a quote from John L. Mills on privacy being the last right.
He referred to privacy as a bundle of rights, and went on to distinguish 4 areas of privacy. These included personal information, value autonomy, physical space and the interface of property. He stated that the interaction and overlap of these factors should make way for a general protection.
He referred to provisions from the Census Act, specifically Section 15, stating that recorded/tabulated information could not even be summoned by the Court of Law.
He also that privacy as a right was concerned with more than just data protection, but was also concerned with surveillance, bodily integrity and self-determination.
The senior counsel concluded his arguments and senior counsel Anand Grover commenced his arguments.
The senior counsel started off by discussing Kharak Singh and the notion of liberty. He remarked on the discussion of privacy being a common law right, stating that it could not be accepted in India. He also mentioned that elevating a common law right or a statutory right to a fundamental right could be possible.
He mentioned the right to health and how it was now progressively realizable.
Remarking on the status of privacy in other jurisdictions, he stated that American jurisprudence was considered lacking in this regard and that jurisdictions like Canada should be paid attention to. He discussed the notions of liberty and security in Canada, which also read in privacy, stating that there was a reasonable expectation of privacy. He also remarked on the European Court devising their own tests for privacy and the recognition of the right by the Inter-American Court.
He then discussed the landmark judgment, Loving vs. Virginia, by which inter-racial marriages were recognized in the United States, stating that the concepts of choice and privacy were integral to this judgment.
Lastly, he discussed the movie ‘Aligarh’, and the judgment the story was based on. He stated that the Allahabad High Court recognized a right to privacy in this regard.
The senior counsel concluded his arguments, and senior counsel PV Sundaresan commenced his arguments.
He remarked on the private nature of thoughts and feelings, stating that a person had a right to be privy to them. He stated that liberty was not limited to physical liberty and mentioned that the allegedly vague nature of privacy was not concrete enough to be a ground for denial.
Mr. Sundaresan concluded his arguments and Senior Counsel Meenakshi Arora commenced her arguments.
The senior counsel stated that under Article 372 all laws shall continue to be protected. She also stated that protection under Article 21 were always present, even before the Constitution was realized.
Referring to Articles 528-531, she remarked upon Justice Khanna’s reading of the Brandeis judgment.
She then remarked upon the nature of fundamental rights, stating that there was no fixed content and that generations must pour their content into the rights.
She also stated that privacy was a multi-faceted right and that it was not open to the state to say that it was an elitist measure. She also stated that fundamental rights could not be pitted against each other to the extent that the right to life of others could only be upheld if privacy is given away. She remarked upon the nature of state as parens patriae and how all rights needed to be protected.
Senior counsel Meenakshi Arora concluded her arguments, and senior counsel Sajjan Poovayya commenced his arguments.
He discussed the collection of data and 26 statutes where privacy was recognized and the mechanism in place to protect the rights.
He remarked upon the respondent’s arguments, stating that they argued that there was a right but not a fundamental right, which seemed merely like a matter of nomenclature.
He concluded his arguments and lastly, Senior Counsel Arvind Datar commenced his arguments.
He stated that Part III of the Constitution was concerned with fundamental rights and if privacy was seen as a sub-set to a fundamental right, then by virtue of being a subset to a larger set, it would also be a fundamental right.
He also remarked upon the respondent’s arguments about privacy being vague, stating that the correct postulation would be to say that it was incapable of precision or a precise definition, and not merely vague. Lastly, he remarked upon the danger of omitting a right like privacy in 2017.
The hearing has concluded and the judgment is reserved.