By Arpita Biswas
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 and here. Today, arguments were advanced on behalf of respondents.The first post discusses arguments made by the Attorney General and the second post covers arguments made Senior Counsel CA Sundaram, appearing for the State of Maharashtra.
The Attorney General started off by remarking on the relevance of the import of the M.P. Sharma and Kharak Singh judgments in front of a nine-judge bench.
He stated that the founding fathers never intended to establish fundamental rights along the same lines as the fourth amendment in America, as was previously established by referring to Constituent Assembly Debates.
He stated that even if the petitioner’s submissions were to be agreed with, and if privacy was recognized as a right, it would be one of many rights and would come under an umbrella of rights. He reiterated the point that all aspects of privacy would not qualify as fundamental rights. He also stated that the right to life of others would take precedence over the right to privacy as a fundamental right.
Referring to his earlier arguments, the Attorney General stated that privacy was merely a sociological notion and could not qualify as a ‘jural’ concept and that it had little more utility than the pursuit of happiness.
He summarised his submissions by stating that first, there is no fundamental right to privacy. Alternatively, if there is a right to privacy, and it can be traced back to liberty, it is a ‘multi-faceted right’ and every right could not be elevated to the status of a fundamental right.
There was a second alternative to the primary submission – that in any event, where the fundamental rights of others stand defeated if informational privacy is claimed, right to privacy could not be claimed.
The Attorney General then went on to discuss American jurisprudence on informational privacy.
He started off with discussing the NASA vs. Nelson judgment, passed in 2011. This case allowed background checks on federal employees and held that there was no constitutional right to informational privacy.
The Attorney General read out several passages from the case.
“Our due process precedents, even our “substantive due process” precedents, do not support any right to informational privacy. First, we have held that the government’s act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976). We reasoned that stigma, standing alone, does not “significantly alte[r]” a person’s legal status so as to “justif[y] the invocation of procedural safeguards.” Id., at 708-709. If outright defamation does not qualify, it is unimaginable that the mere disclosure of private information does.”
The Bench interjected at a few points.
Justice Chandrachud stated that the case in question referred to informational privacy and the scope of the 9 judge bench was limited to privacy as an entire concept. He also stated that in the American case, the government was the employer, which set a different standard than when a sovereign state is involved.
He went on to discuss other American cases like Roe vs. Wade where it was held that privacy was part of due process law. He also stated that American jurisprudence was not at the forefront of the debate on informational privacy. There are other jurisdictions that could prove more worthy in this discussion, like Luxembourg or Strasbourg.
The Attorney General stated that this case would have to be considered in the Indian context and that he would have to look into the aforementioned cases. He continued to read out other passages from the case:
“ Second, respondents challenge the Government’s collection of their private information. But the Government’s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U. S. 435 (1976), and that the Fourth Amendment does not prohibit the Government from asking questions about private information. 530 F. 3d 865, 876-877 (2008). That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.”
Justice Nariman brought up the point that United States vs. Miller had been criticized heavily, also in Indian judgments. The effect of it was that it undid the Katz judgment and pushed the jurisprudence back to 1928 while shifting the 4th amendment jurisprudence. He did not see the merit of relying on this case.
The Attorney General then stressed on the point that informational privacy was explicitly omitted in this judgment. He stated that the deliberate omission raised serious doubts.
He stated that the relevance of the case was that it did not allow informational privacy to be elevated, which ties in with his submissions.
Justice Chandrachud went on to discuss the 3 positions on informational privacy.
First, is Justice Scalia’s position. Which is that informational privacy can never be a constitutional right. Second is the position that all informational data is constitutionally protected under the rubric of privacy. And third is the position that some data can be protected but not all data can be saved under privacy.
He then went on to discuss the need for a determining principle. He said that given that demographic information is available in the public and we are increasingly becoming public individuals, there is a need to identify what kinds of data attract privacy interests and what do not, this is where the principle is relevant.
On the matter of informational privacy, the Attorney General then stated that the state should have a blanket right to informational data. He then qualified that by saying that the bench would have to consider where the line would be drawn, stating the example of asking about extra marital affairs in an Aadhaar form.
On the matter of this restriction, Chandrachud asked whether this blanket right of the state would come into play as a legitimate or a compelling interest and what the threshold would be. A legitimate interest has a lower threshold than a compelling interest.
The Attorney General stated that a lower threshold would be more appropriate.
Justice Chandrachud then asked that if there was a compelling state interest, should there be rules for how the state maintains collected data.
Referring to election rules about asset disclosure and criminal charges, the attorney General stated that this form of disclosure would be in the interest of the public.
On the point of compelling state interest, Justice Chelameshwar stated that what can be determined is to what extent the right can be curtailed, not what the right is.
He also stated that the context of the NASA case was different and wouldn’t be relevant for this case.
The Attorney General then went on to read the contents of an Indian Census form. He said it was elaborate and ‘stood the test of time’. He also stated that the obligation to hand over this data could not be undone because public interest prevailed. According to the Attorney General, once a matter is a public record, it becomes a legitimate subject and there can be no claim to a right to privacy.
He then went on to list out recent developments of linking Aadhaar with different schemes.
At this juncture, Justice Chelameshwar referred to Section 11 (1) (b) of The Census Act, 1948 and how the Act had provisions to protect data.
The relevant parts of Section 11(1)(b) reads as follows:
‘any census officer who…discloses any information which he has received by means of, or for the purposes of, a census return…shall be punishable’
In response to which, the Attorney General stated that Section 29 of the Aadhaar Act was more stringent.
The Aadhaar Act was then discussed. Justice Chandrachud raised the question of interpreting ‘demographic information’ under Section 2(k) of the Act. He then went on to discuss whether mobile phone numbers would be protected under the Aadhaar Act.
He then went on to discuss how 800 million phone numbers could possibly be a commercially viable asset and sold to private organizations. The state would need to ensure that there were laws protecting such data.
Justice Chandrachud then stated that the 3 judge bench would have to consider whether there should be a robust protection mechanism.
The Attorney General stated that such information would not be shared and would be protected under the Aadhaar Act.
At this point, Additional Solicitor General Tushar Mehta brought attention to certain provisions of the Aadhaar Act and the Aadhaar Enrolment Regulations. He stated that Section 8(2)(b) and Section 29(2) of the Act, read along with Rule 4 of the Aadhaar Enrolment Regulations would ensure that information was protected.
Justice Nariman stated that these provisions of the Aadhaar Act, and the entire chapter referred to did seem to identify privacy interests. He then asked the respondents if, by relying on these provisions, they were also recognizing privacy interests. Justice Bobde asked if the respondents were identifying privacy as a fundamental right.
To this the respondents stated that there is no fundamental right to privacy, by virtue of which privacy interests had to be specifically identified in the Aadhaar Act.
The Attorney General discussed the case of PUCL vs. Union of India. This case relied on Justice Frankfurters opinion of ‘ordered liberty’ in Wolf vs. Colorado, (1949) 338 US 25.
He then went on to discuss the American case, Greater Cleveland Welfare Rights Organization vs. Samuel Bauer, 462 F. Supp. 1313 (1978). This judgment upheld the validity of Social Security Numbers in the United States and held that citizen’s privacy would not be violated.
He then went on to read out the contents of a Social Security enrolment form and compared it to an Aadhaar enrolment form. He remarked upon the content of the Social Security enrolment form, stating that new fields were added frequently, ever since the system was launched. He also stated that there aren’t too many instances in the United States where a Social Security Number is not required, including that of a death certificate.
The Attorney General stated once again that the founding fathers did not intend to include privacy as a fundamental right and that it was deliberately omitted.
In conclusion, the Attorney General stated that liberty is a multitude set of rights and even if privacy is a right, it could not be elevated to the status of the fundamental right to privacy.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi