By Arpita Biswas
On the 19th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20th and the 26th of July. Our post discussing the hearing on the 20th of July can be found here.Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the second post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.
Appearing for the states of Karnataka, West Bengal, Punjab and Puducherry was Senior Counsel Kapil Sibal.
Mr. Sibal began by stating that the present case is concerned with technological issues that did not exist in 1962 and 1964. Referring to the judgment of M.P. Sharma and Kharak Singh, he stated that these issues could not have been considered in the aforementioned cases. Technology allows the state to be pervasive, invasive, gives it the capacity to empower and disempower, and allows the aggregation and disaggregation of data.
He stated that privacy was not an absolute right and that the court should strike a balance to ensure privacy. He also stated that everyone was entitled to privacy over their own body or their DNA and that the state should not have the authority to take that away.
Mr. Sibal went on to discuss more insidious forms of invasion, referring to technologies that allowed imaging from outside the house. He also referred to technology that allowed smart phones to collect data.
He then stressed on the different forms of data access – between citizens and state & citizens and non-state actors. He stated that technology had advanced to the point where one could track cars and that mobile data is also easily accessible. Mr. Sibal went on to discuss a few more points about technology and its invasive powers.
Justice Chandrachud interjected stating that if data has been shared, it has left your device. Mr. Sibal stated that while that may be true, certain forms of data are encrypted and do not leave your device, citing the example of WhatsApp messages. Justice Chandrachud stressed on his previous point, stating that apart from the concern of the state breaching your privacy there was also the issue of private actors doing so. He cited the example of booking a cab and the information that is shared in the process. Justice Chandrachud stated that when you book a cab on your phone, the price that comes up is based on your aggregated data, which should be of concern as well.
Mr. Sibal stated that there are laws which restrict state access to those forms of data as well. He cited an Australian statute which would ensure that such data is confidential between the user and the driver, and is outside the states access.
Following from Justice Chandrachud’s concern about private organizations and access, he stated that there were various issues with access to data , categorising them into – state having direct access, state having indirect access and access by non-state actors. Mr. Sibal also drew attention to the problem of data that has been shared with a specific government body, and the confidentiality of that data. He stated that there had to be measures taken to ensure that this data was not shared with other govt bodies without the consent of the concerned individual.
Referring back to the 6 judge and 8 judge bench decisions, he stated that M.P Sharma and Kharak Singh could not prevail in the context of this case. He stressed on the fact that ever since these judgments were passed, the relationship between stakeholders had transferred – in light of which, privacy issues had to be addressed afresh.
He also stated that privacy was an inalienable, tacit right which arose from the desire to be left alone. The right to privacy includes the right to protect the inner sphere; and make autonomous life choices. There are three matters that have to be taken into consideration ; subject matter, relations and state.
Referring back to the various issues plaguing access to data, Mr. Sibal contended that the state was now more powerful than ever and privacy had to be understood on the basis of qualitative relations. These included the relations between the citizen and the state and between the citizen and non-state actors.
Chief Justice Khehar stated that the present case was only limited to discussing whether there is a fundamental right to privacy and that the arguments could not be extended beyond that ambit.
Mr. Sibal discussed the case of Riley vs. California. In this case it was unanimously held that warrantless searches of mobile phones were not allowed; he also discussed how increasing storage capacities of phones allowed more access to data than possible previously. He stated that due to increased storage, we could now infer the date of purchase and other details from a phones data. Continuing with Riley, it was stated that cell phones allow for far more intrusive practices than is possible in the physical realm.
Justice Chandrachud brought up the issue informational privacy and stated that under American case law, it is expressly open and is not a part of liberty, as per Justice Scalia. Mr. Sibal stated that the focus should be on Indian jurisprudence and not on how different jurisdictions go about the issue.
Justice Chelameshwar asked where the right should be located, between Article 19, 21 and 25. Mr. Sibal responded stating that the basic premise is that privacy is an inalienable, natural right and because of its nature could manifest in different ways. It has to be seen on a case to case basis, the nature of invasion has to be determined and due to ambiguity of manifestation, the right should not be restricted.
In support, Justice Kaul stated that due to the changing nature of technology we cannot always know how an invasion would manifest. Mr. Sibal then continued with the discussion on Riley vs. California. He referred back to the qualitative relations between the citizen and the state and between citizens and non-state actors. He mentioned that they were both horizontal and vertical rights.
Mr. Sibal then discussed the ‘reasonable expectation of privacy’ in American jurisprudence. He referred to United States vs. Jones, stating that the expectation arose from the constitution. Justice Nariman stated that the ‘reasonable expectation’ doctrine has a larger jurisprudence.
Justice Chelameshwar pointed out that there was a difference between usage and access. He also pointed out that multiple government agencies, could be one entity in some contexts, and could therefore get access to confidential data. Mr. Sibal responded stating that confidentiality should be absolute and there should be no access if not permitted.
At this point , Justice Chandrachud asked if protection of data should be limited to only blood and DNA or also to other facets like financial data. He stated that financial data can be imperative in determining criminal offences like tax frauds etc.
Mr. Sibal responded saying that for criminal offences, access should be allowed but the state should only be allowed access for ‘legitimate’ and not ‘compelling’ concerns. He stated that if a data protection law was to be implemented, certain principles would have to be followed – 1) the interference should be necessary, 2) for a legitimate interest, 2) interference should be proportionate and 3) procedural safety should be guaranteed.
Mr. Sibal went on to talk about platforms where confidentiality cannot be maintained, stating that in these instances – it should be ensured that users have knowledge of the same.
He then discussed the need for a data protection law, which would emanate from the right to privacy. He also stated that without this law there would only be tortious remedies.
At this juncture, the bench asked for a copy of the private member’s privacy bill. The Bench then went on to discuss Justice A.P. Shah’s Report of the Group of Experts on Privacy.
Referring to the report by Justice A.P. Shah, Mr. Sibal discussed the status of privacy in other jurisdictions.
Mr. Sibal also stated that the privacy of state’s data was important. In the instance that a non-state actor from another country accessed the states data, it should be prosecutable. Mr. Sibal then discussed legislations from the United States of America and other jurisdictions that ensured that specific forms of privacy were upheld – like the Financial Modernization Act and the Telecommunications Act.
Referring to the same report, the Bench drew attention to the fact that privacy should be sector mutual.
Lastly, Mr. Sibal stressed on the fact that no person should be deprived of their personal liberty.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi