Yesterday, a 9 judge constitution bench of the Supreme Court of India was set up to hear arguments on whether there is a fundamental right to privacy under the Indian Constitution, following from an order of a 5 judge bench on the day before. Arguments were advanced on behalf of some of the petitioners yesterday, and the petitioners counsels continued arguments before the Court today. Our updates on the proceedings before the court on Tuesday and Wednesday are available here and here. A background to these hearings, and the larger Aadhaar case can be found here.
Our update on today’s hearings have been divided into two posts, the first post available here details the arguments made by senior counsels representing petitioners S. Raju, Aruna Roy and Nikhil Dey during the first half of the day. This post details arguments made by senior counsels representing the remaining petitioners, largely during the second half of the day.
The senior counsel representing M P Rajeev Chandrashekar, an intervenor in the matter presented his arguments before the Court next. He began arguments by observing that this is the first time (9) judges of the Supreme Court are sitting to decide on the right to privacy in the age of a digital society. He noted that while data protection is a secondary issue, a subset of the right to privacy, the recognition of an inherent fundamental right to privacy has important ramifications in the digital age. He pointed out that the landmark / important judgments that we refer to in the context of privacy and surveillance – whether Kharak Singh v. State of Punjab (Kharak Singh) in India or Katz v. United States (Katz) in the US, are all located in the physical world.
Moving to arguments on the grounding of the right to privacy under the Indian constitution, he argued that if privacy is an inherent right, and it is recognised / affected by way of its manifestation, which may be in multiple rights under the constitution. It may reside in Articles 14, 19, or 21, or in the preamble itself. He argued that as an example, liberty of thought is an essential part of the right to privacy, if this right is infringed upon, the violation of the right to privacy may manifest itself as a chilling effect on free speech under Article 19(1)(a). He also submitted that cross-application of these rights is possible.
At this stage, the bench intervened, asking about the scope for informed consent in the context of the internet and data privacy. The counsel noted that we have an increasing amount of digital communication in India – and that while the quantum of data shared may not be as much as western countries like the US, what matters is the quality of data. He argued that if there is a breach of any data, even of the smallest quantity, it is a matter of importance. He referred to the US Supreme Court judgment in United States v. Jones, pointing the bench to Justice Sotomayor’s concurring opinion in the judgment. In the concurring opinion, Justice Sotomayor has discussed how governments are increasingly capable of monitoring individuals’ movements using GPS enabled phones, enabling governments to store records about individuals that could be mined for data for many years to come.
Requesting the Court to consider the way these issues have been addressed in US v. Jones, the counsel submitted that if the Court recognises the right to privacy as a fundamental right, the manner in which such data would be treated in a similar situation in India would differ vastly.
He provided the example of the Karnataka government’s rules for online taxi aggregators, which require aggregators to provide the government with information regarding every trip taken by every user using their services. He noted that this collection of information was non-intrusive, done in the guise of regulating taxi services, and not immediately harmful. However, in certain situations, this action could manifest itself as a restriction on an individual’s right to movement. At this stage the bench asked whether this would still be of issue if the information is being collected to investigate an individual suspected of terrorist activities. The counsel submitted that if the collection was done under procedures established by law, that passed the muster of the tests under Part III of the constitution, it would be acceptable, but that in this case it was being done for an entirely different purpose.
Justice Chelameswar then asked if the issue was with the collection of information or the use of the information, and Justice Chandrachud noted that both the volume of data collected as well as the permanent nature of the data and potential for use / misuse needs to be accounted for. Justice Chandrachud proposed that it could be said that the State has to specify the purpose of collection, and then ensure the data is used for those limited purposes, as authorised under the specific law. The counsel submitted that limitations of this nature are already standard in data protection regulations applicable to private entities, and noted that a higher standard should be applied where the state is collecting data impacted by a fundamental right.
Justice Chandrachud continued to raise questions – now asking whether it made a difference if the citizens whose data is collected / used are unconcerned about such collection / its purpose, and whether there is a qualitative difference between collection and use of information between state and non-state actors. The counsel argued that this lack of concern is exactly why there is a need for the right to privacy to be recognised as a fundamental right – bringing up the highly debated question of whether providing information means surrendering the right to privacy. Justice Chandrachud was quick to point out that a constitutional right cannot be surrendered, and it would merely be a surrender of information.
The counsel agreed, arguing that in the case of a non-state actor, providing information to one actor did not mean providing the information to all, and that a contractual relationship exists to enforce this understanding. He noted that similar assurances need to be provided under law where information was provided to the State. Referring once again to Justice Sotomayor’s concurring opinion in US v. Jones, he argued that the concept of privacy can no longer be shrouded by secrecy. He argued that providing information cannot mean that there is no longer a right to privacy in relation to such information, citing Justice Sotomayor’s statement that it may be time to reconsider the premise that there is no reasonable expectation of privacy in information voluntarily provided.
At this stage, Justice Bobde posed an interesting question to the counsel, asking him how these rights apply in relation to the dark web, and new forms of digital transactions such as bitcoin based transactions, which cannot be traced. The counsel submitted that the dark web is an aberration that lies outside the purview of this right, and that it is one of the reasons law needs to develop in a manner applicable to the internet and the digital age. He also argued that it is important to ensure that the State does not become a proponent of the dark web. Noting that the State would not be able to argue that law and order cannot be maintained in a part of the country due to a lack of police resources, the State should not put itself in a position where it cannot protect the rights of citizens online after collecting their data, due to a lack of technical capability / resources. Providing the example of defence at land borders, the counsel again argued that even if the State cannot clean the internet of illegal activities, it should at least be able to protect the rights of its citizens.
Once again highlighting that often the effects of violation of privacy are not felt immediately, he argued that in such a situation, the State should not be allowed to collect and use citizens’ data without oversight. He then argued that recognition of the right to privacy is the first step to ensuring that there is oversight, and that based on this right, further frameworks can be put in place to ensure protection of this right. The counsel also cited the example of the United Kingdom’s proposed biometric project, where biometric information of citizens had been collected for years. However, upon realising that it may not be possible to protect such information, the State ensured by law that all the information is destroyed.
The counsel then moved to the question of grounding of the right to privacy in the fundamental rights, and submitted that it is not possible to limit the right to specific Articles under Part III, or define the contours of the right. The bench questioned this argument saying that with decades of privacy jurisprudence it must be possible to define some contours. However, the counsel continued to argue that such limits should not be placed, stating that technology is developing at such a rate that any such contours may well become obsolete in the future.
The counsel also highlighted to the bench that the right to privacy while not explicitly recognised in the constitution, has always been recognised in statutes in India. He mentioned examples such as the Post Office Act, 1898, the Telegraph Act, 1885 and the more recent Right to Information Act, 2005 to support this contention.
The counsel concluded by stating that we should not be disputing the nature of the right to privacy in 2017, and noting that if a 9 judge bench had decided on this right 15 years ago, the State would not have been able to collect biometric data at such a scale without putting adequate legal checks (that pass the muster of Articles 14, 19 and 21) in place.
Senior counsel Meenakshi Arora was the last to argue for the petitioners. Although she was unable to complete her arguments due to a lack of time, the counsel made several important arguments before the Court on behalf of the petitioners. The counsel began her arguments by noting that the main issue before the Court is whether the words of Kharak Singh and M P Sharma are the correct expression of the constitutional position on the right to privacy. She noted that all other aspects of the right to privacy, although discussed in some detail, were merely subsets of this questions.
She noted that both cases have been read several times before the courts. She focused on the sections of Kharak Singh that struck down the provision of the UP law in question (Regulation 236 of the U. P. Police Regulations). She argued that the court in this judgment found the right to privacy in Article 21 and struck down the provision of the UP law on this basis. She also noted that the Kharak Singh judgment was made on the basis of two US judgments – Wolf v. Colorado and Semayne’s case, as a result of which several subsequent judgments that recognise the right to privacy as a fundamental right have cited these cases.
The counsel then noted that it is difficult to hear arguments that privacy is not a fundamental right in this day. She also argued that while the digital context was one aspect of the right, the right itself could not be limited to Articles 14, 19 and 21. She urged the court to look at Articles 17 and 25 – noting that an individual might not want to share information such as their caste details. Justice Chandrachud pointed out that without divulging such information, one may not be able to receive caste based benefits they are entitled to. The counsel agreed, but argued that while the right may be restricted in accordance with procedure established by law, the use of this information that one is compelled to provide, for a purpose other than the purpose it was provided for should be considered an infringement of rights.
Moving back to the discussion on the development of the right to privacy, she noted that English common law was developed based on practices and case law. This law was then imported into Indian and US constitutional law, and jurisprudence which developed on the basis of English common law. The counsel then noted that the Semayne’s case, referred to in Kharak Singh, had already been imported into English common law before the Indian constitution was framed. She argued that the right to privacy was therefore part of English common law at time the Indian constitution came into effect and Kharak Singh was decided.
The counsel also referred to India’s ratification of international instruments such as the ICCPR, noting that it is now too late to say that we do not have a constitutional right to privacy. Although she was unable to make full arguments due to a lack of time, the counsel also requested the Court to read the judgments in Semayne’s case, Huckle v. Money, and Roe v. Wade among others to recognise the development of the right to privacy.
The counsel submitted that history has shown us the consequences of not recognising the right to privacy, and noting the change in the German constitution, and the German emphasis on the right to privacy post the second world war. She submitted that privacy is an inherent right, and that while some contours of this right can be identified, the right itself should not be limited. She concluded her submissions by stating that it is undemocratic to not recognise the inherent right to privacy in this day.
With this the petitioners’ arguments were concluded today. The hearing will continue on Tuesday, July 25, 2017, when the Union of India will argue its case.