CCG is excited to announce the launch of the CCG High Court Privacy Tracker, a resource consisting of decisions on the constitutional right to privacy passed by all High Courts in India. The High Court Privacy Tracker captures cases post the pronouncement of the Justice (Retd.) K.S. Puttaswamy vs. Union of India (Puttaswamy) judgment. In Puttaswamy, the Supreme Court of India reaffirmed the existence of the right to privacy in India’s Constitution as a fundamental right.
The High Court Privacy Tracker is a tool to enable lawyers, judges, policymakers, legislators, civil society organisations, academic and policy researchers and other relevant stakeholders, to engage with, understand and analyse the evolving privacy law and jurisprudence across India.
The CCG High Court Privacy Tracker can be accessed – here.
The High Court Privacy Tracker serves as a natural extension of and supplements the efforts of the existing CCG Privacy Law Library (PLL). The PLL contains case briefs of more than 160 cases and tracks privacy jurisprudence from nine countries around the world with a mix of emerging economies, developing and developed countries – India, Sri Lanka, Nepal, USA, Canada, South Africa, South Korea, Singapore, Europe (ECJ and ECtHR). CCG will continue to add more jurisdictions and cases to the PLL.
Why Did CCG Build the High Court Privacy Tracker?
The Puttaswamy judgment marked a watershed moment for privacy law and jurisprudence in India. In Puttaswamy, the Supreme Court of India not only clarified that India’s Constitution guaranteed a right to privacy, but also recognised various types of privacy that the right protects. To name a few, the Court acknowledged rights such as – bodily privacy, communicational privacy, associational privacy, and informational privacy.
This expansive reading of the right to privacy, resulted in broadening India’s fundamental rights law and jurisprudence. Various rights such as the right to marry a person of one’s choice (for heterosexual couples), right to determination of sexual identity, and the right to die with dignity were subsequently recognised by the Supreme Court by relying on principles of privacy as expounded in Puttaswamy.
In Puttaswamy, the Supreme Court also laid down a four-part test for determining the legitimacy of State action that limited or restricted the right to privacy. The four-part test includes – legality, which postulates the existence of law; need or necessity, defined in terms of a legitimate state aim; proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them; and procedural guarantees or safeguards against abuse of the privacy restricting measure.
Refer to our handbook to read about all the privacy cases from the Supreme Court of India starting from the year 1950, please click – here.
CCG believes that as the right to privacy finds prominence in India’s fundamental right’s jurisprudence and High Courts around the country provide their own interpretation of the principles and tests recognised in Puttaswamy, a tracker for mapping out these decisions would be helpful to relevant stakeholders.
High Courts – Defending Privacy Rights
High Courts in India are increasingly playing a major role in the evolution of privacy rights in India.
The Karnataka High Court’s recent decision on the Aarogya Setu app (India’s COVID-19 contact tracing app) and the challenges it posed to informational privacy is an important example of the application of principles to data protection as recognised in Puttaswamy. Through an interim order, the High Court restrained the central government and the National Informatics Centre (a government agency that helped develop the Aarogya Setu app) from sharing the data with other government agencies. The Court held that users were not informed, and therefore their consent was not obtained, thereby impinging on their privacy rights.
In another pending case before the Delhi High Court, wherein the petitioner, who was an American citizen of Indian origin, requested for removal of a judgment concerning him from Google, Indian Kanoon, and vLex.in (the latter two being online legal databases). The judgment was in relation to a case against him under the Narcotics Drugs and Psychotropic Substances Act, 1985. The Court, through an interim order, asked Google to remove the judgment in question from its search results and similarly directed Indian Kanoon to block access to the judgment via search engines such as Google or Yahoo. While arriving on its decision, the Court relied on the right to privacy as recognised in Puttaswamy, and also the ‘right to be forgotten’ as emanating from the right to privacy.
These are just two examples wherein High Courts have relied on the right to privacy and provided meaningful remedies even before issuing the final judgments.
CCG will continue to track the development of these cases and others from High Courts across India and periodically update the tracker.
Methodology
The High Court Privacy Tracker has been developed using judgements pulled from the Manupatra case law database. Through its search function, CCG identified cases that relied upon the Puttaswamy judgment and were pertaining to the right to privacy, and filtered them by each of the 25 High Courts in India. These were then further examined to identify those cases whose decisions concerned a core aspect of privacy. CCG identified the following aspects of privacy (1) autonomy, (2) bodily integrity, (3) data protection, (4) dignity, (5) informational privacy, (6) phone tapping, (7) press freedom, (8) right to know and access information, and (9) surveillance, search and seizure. Cases where only incidental or passing observations or references were made to Puttaswamy and the right to privacy were not included in the tracker. The selected cases were then compiled into the database per High Court, with several details highlighted for ease of reference. These details consist of case name, decision date, case citation and number, case status, legal provisions involved, and bench strength. The tracker also includes select quotes concerning the right to privacy from each case, to assist users to more easily and quickly grasp the crux of the case.
For ease of access to the text of the judgments, each case on our tracker is linked to the Indian Kanoon version of the judgment (wherever available) or an alternative open-access version of the judgment text.
We welcome your feedback. In addition, you may write to us at – ccg@nludelhi.ac.in with the details of any privacy case we may not have included from any High Court in India.
Limitations
The High Court Privacy Tracker currently only consists of cases reported on Manupatra, and those reported upto 15 May 2021 (CCG will continue to update the tracker periodically). Only final judgements are included in the tracker, and not interim orders of the High Courts. Hence, the decisions referred to above, including the Karnataka High Court’s order on Aarogya Setu and the Delhi High Court order in the ‘right to be forgotten’ case, shall be included in our list once the final judgments are issued.
We hope that our readers will find the High Court Privacy Tracker useful. As ever, we welcome feedback.
CCG thanks Jhalak M. Kakkar, Shashank Mohan, Sharngan Aravindakshan, Nidhi Singh, Anna Kallivayalil, Priyanshi Dixit and Aditya Gaggar for their work conceptualising, designing and putting together the Tracker. The work on this tracker is supported by Omidyar Network India. We are thankful for their support.
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