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. 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.
The hearing started off with Senior Counsel Rakesh Dwivedi, appearing for the state of Rajasthan, continuing his arguments.
Mr. Dwivedi stated that privacy as a right had to be located specifically. He stated that if privacy was integral to a certain fundamental right, for instance, Article 19(1)(a), it would become part of that right and there would be no need to elevate it to the status of fundamental right itself. In this instance, it could also be tested under the restrictions listed under Article 19(2).
In response, Justice Nariman discussed the American case of Stanley vs. Georgia. This case dealt with obscene material found at the accused’s residence. Even though the freedom of expression in the United States did not cover obscene material, the United States Supreme Court held that the possession was not illegal as it was in their home, which rendered it private.
Mr. Dwivedi stated that privacy as a right would have to be under one fundamental right.
Justice Chandrachud stated that his test could constrict the arms of the state. For instance, if one were to take behavioral privacy and say that it is only covered under Article 21, then it would have to meet only one test. Mr. Dwivedi reiterated that privacy should only be covered under one right, and that would have to be Article 21.
Justice Nariman stated that the problem with this contention was that it would bring them back to the majority opinion laid down in Kharak Singh.
Mr. Dwivedi reiterated his point.
Chief Justice Khehar stated that these contentions had far-reaching consequences. For instance, if privacy was only protected under Article 21, then the only safeguard would be procedure. If privacy was only covered under Article 19, then the safeguards would be reasonableness, etc.
Mr. Dwivedi stated that Maneka Gandhi vs. Union of India would ensure that actions under Article 21 would also have to be ‘just, fair and reasonable’.
Justice Chandrachud stated that privacy could be found as a right under other fundamental rights as well, such as Article 25. In response to this, Mr. Dwivedi stated that while the ‘planets’ may interact, they still have their own ‘orbits’, and would have to be reconciled.
Mr. Dwivedi then went on to discuss the legitimate expectation test laid down in the case Kyllo vs. United States. This case dealt with the marijuana found on private premises, which was detected by thermal imaging and whether the evidence found would be permissible. Mr. Dwivedi read out a paragraph from the case which discussed the Katz test.
While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U. S., at 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.
Justice Nariman disagreed with Mr. Dwivedi and asked him to read out a portion of the case Minnesota vs. Carter.
In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz) is that, unsurprisingly, those “actual (subjective) expectation[s] of privacy” “that society is prepared to recognize as ‘reasonable,'”, bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a “search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that “search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this Court to determine which particular manifestations of the value of privacy “society is prepared to recognize as ‘reasonable.'”. Rather, it enumerated (“persons, houses, papers, and effects”) the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.
Justice Nariman then stated that similarly, there would be no ‘plausible foundation’ in Article 21 either.
Mr. Dwivedi stated once again that the Katz test would be the best one to apply.
At this point, Justice Chandrachud asked whether there was a possibility of different zones of privacy existing. He then laid down the different zones of privacy:
1) Intimate zone – this would concern marriage and sexuality, amongst others. In this zone, state intervention would have to be of a minimal amount, and the law would frown upon any invasion other than that involving a compelling state interest.
2) Private zone – this would involve instances of privacy, shared with others. For instance, money transactions. In this zone, the purposive test would have to be applied and information shared could only be used for the purpose enumerated.
3) Public zone – in this zone, privacy of the mind and the body would still be expected. But otherwise, privacy would have to be modulated from the previous zones.
Justice Chandrachud stated that privacy would be gradual from the intimate to the public zone and would have to be modulated accordingly.
Mr. Dwivedi stated that according to his understanding, the notion of privacy was in contrast to the notion of the public.
Justice Chandrachud stated that what India had to offer as a global powerhouse, was its population. He stated that the demands of the 1.4 billion people in country, was sustaining its power. He also stated that in the context of privacy, we would have to ensure that innovation was not stifled and that a knowledge based economy could thrive.
Mr. Dwivedi then stated that privacy could generally not be considered as a right, but certain concerns could be.
Justice Chandrachud stated that even in the extreme public realms, the core of privacy would still have to be maintained.
Mr. Dwivedi stated that the modulation of privacy from one zone would have to be diluted, and that beyond the intimate zone, privacy would not apply as strongly. He reiterated the point that privacy concerns would have to be determined on a case by case basis.
Justice Nariman then stated that there would be different tests in each privacy zone and they would have to be balanced against state interest, and that privacy would exist in each zone.
Mr. Dwivedi stated that this would be circumstantial. He stated that there could be sensitive information collected, without harm and injury. Citing the example of medical data, he stated that such data could be collected from the ‘sensitive’ zone, without identifiers, and this would not attract Article 21.
Mr. Dwivedi then read a paragraph from Govind vs. State of Madhya Pradesh, which relied on Griswold vs. Connecticut.
There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that acclaimed right is entitled to protection as a fundamental privacy right ,a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed rights as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a interest- sufficient to justify the infringement of a fundamental right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.
Mr. Dwivedi discussed a few other cases dealing with ‘reasonable expectation’, including Smith vs. Maryland. He also discussed reasonable expectation under Article 8 of the ECHR.
Mr. Dwivedi then stated liberty in the preamble was in a narrow domain. He also stated that dignity was to be construed in the context of fraternity.
He then went on to discuss due process under the law, stating that this term would create great problems. He relied on the McDowell case to support his argument. Justice Nariman then stated that McDowell was a doubtful judgment. He went on to state that due process has been upheld as the ‘just, fair and reasonable’ standard in Maneka Gandhi’s judgment.
Mr. Dwivedi stated that this would have to be read in context of V.G. Row and Chintaman Rao. He also stated that if the test was for ‘just, fair and reasonable’, then there would no need to read it as due process. Mr. Dwivedi also relied on the Sunil Batra case, stating that according to Justice Krishna Iyer’s opinions, there could be no due process law.
Justice Nariman went on to explain the difference between substantive and procedural due process. Mr. Dwivedi stated that a procedure that denies the court discretion is problematic. He then stated that the standard in McDowell had to be upheld.
Justice Nariman stated that McDowell had to be seen through the V.K. Jain judgment.
Mr. Dwivedi reiterated that due process has been rejected previously and that the same must be adhered to.
He then went on to discuss identification information and the protection of privacy. He states that basic identification information cannot be protected by a right to privacy, citing the example of the Supreme Court rules and the details of the Judges published on the website. Referring to the Order 38, Rule 12(2) he asked if a right to privacy could be claimed in this regard.
Mr. Dwivedi then stated that only those who had something to ‘hide’ would claim the right to privacy. Justice Chelameshwar disagreed.
On the point of information of lawyers and judges, Justice Chandrachud stated that the problem would arise if the Supreme Court were to provide that database to other legal service providers.
Mr. Dwivedi stated that there were major private corporations that had personal data, and remarked on how companies like Google should be controlled in this regard. Justice Chandrachud stated just because privacy as a practical notion was breaking down, that could not justify the disregard of privacy as a constitutional notion.
Mr. Dwivedi stated that basic information was now handed over to several bodies and stated that this would essentially render it in the public zone.
Justice Nariman stated that these bodies would still have to ensure that the information were used for specific purposes. Mr. Dwivedi states that there have to be other ‘over-arching principles’ that have to be considered, and not just purposive limitation.
With this point, he concluded his arguments.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi