SC 9 Judge Bench on the Fundamental Right to Privacy – Day II [Part II]

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.

SC 9 Judge Bench on the Fundamental Right to Privacy – Day II [Part I]

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, this post details the arguments made by senior counsels representing petitioners S. Raju, Aruna Roy and Nikhil Dey during the first half of the day. The second post is available here and details arguments made by senior counsels representing the remaining petitioners, largely during the second half of the day.]

Today’s proceedings began with senior counsel arguing on behalf of S. Raju concluding his submissions. Responding to the question raise in the court’s reference to the 9 judge bench, the counsel stated once again that the ratio in the judgments in Kharak Singh v. State of Punjab (Kharak Singh) and  M.P. Sharma v. Satish Chandra (M P Sharma) do not provide that there is no fundamental right to privacy under the Indian Constitution. The bench raised the question of the right to privacy in relation to private agencies / individuals, highlighting that enforcing a right to privacy against a private person would possibly act against other rights of such private person.

The senior counsel referred to academic writings that categorise privacy into 3 broad areas:

  • physical / spatial privacy: which deals with the protection against tangible / intangible invasion of private space
  • informational privacy: dealing with an individual’s control over dissemination of their personal information
  • decisional privacy: dealing with protection of an individual’s autonomy over fundamental personal decisions.

He highlighted that the nature of privacy protections against third parties that is being discussed by the Court i.e. in the context of collection and use of data in the digital world, would fall within the category of informational privacy. The counsel further submitted that we have already seen examples of remedies by way of damages discussed in the case of enforcement of a right to privacy against a non-state actor in R. Rajagopal vs State Of T.N (Rajagopal). He further stated, that the remedies would of course depend upon the case, and that there is no simple answer to this question. He emphasised that however, in the case of a violation of the right by the State, remedies must be available under Articles 226 and 32 of the Constitution.

The bench pointed out that there is a wider regulatory issue here – if there is a violation of a constitutional right by a state actor, Article 13 of the Constitution (which provides that any law that contravenes the Part III of the Constitution conferring fundamental rights will be void) would be applicable. However, in a situation where Article 13 does not apply, the question is whether the right to privacy would then be a horizontal right, requiring the state to ensure a regulatory environment in which the right is allowed to flourish.

The senior counsel highlighted that in the context of privacy, the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 are an example of the state providing such regulatory environment. He also argued that not every horizontal right requires a regulatory framework, and that such frameworks could be put in place depending upon the requirements of public interest.

The bench directed the conversation back to the question of remedies, pointing out that in the context of privacy and data protection, often the only effective remedy is an injunction, and that damages may not be an efficient remedy. The counsel agreed, stating that different forms of remedies maybe available depending upon the facet of privacy in question and the nature of violation of the right. He pointed out that in Rajagopal there was a mixture of horizontal as well as vertical application of the right to privacy. In Mr. X v. Hospital Z, a completely different approach was adopted – by approaching a consumer forum / court for the protection of the right to privacy.

The counsel for petitioners Aruna Roy and Nikhil Dey argued next. He began by stating that in addition to the arguments already made by other counsels, the statements on privacy in Kharak Singh and M P Sharma should not be construed to be of importance, since the issue of privacy as such was never raised during arguments in these cases. The statements on privacy were merely observations made by the judges that did not have bearing on the decisions in either case. Noting that Kharak Singh has been overruled by  Maneka Gandhi v. Union of India as argued by the other petitioners, he submitted that what remained was for the specific portions of M P Sharma that have been upheld in Selvi & Ors vs State Of Karnataka & Anr (Selvi) to be overruled.

The counsel then proceeded to argue that the Constitution of India is a living document, and that this implies that the rights under the constitution must develop with time. The counsel pointed out that while our Constitution, and the Indian legal system was developed on the basis of English common law, the right to privacy was originally recognised under American jurisprudence and not English common law. English common law originally provided for tortious remedies for specific acts that may be construed as an invasion of privacy, but there was no overarching tort on the invasion of privacy as such.

The counsel then observed that on the other hand, India has several obligations under international law to recognise and protect its citizens’ right to privacy. He pointed out that the right to privacy is recognised as a basic human right under the Universal Declaration of Human Rights adopted by the United Nation General Assembly which India is a member of. India has also specifically ratified the International Covenant on Civil and Political Rights (ICCPR) which also provides for a right to privacy.

He referred to the judgment in I R. Coelho v. State of Tamil Nadu which states that “constitutional provisions have to be construed having regard to the march of time and the development of law”. The counsel argued that constitutional rights must be developed in accordance with both domestic and international developments and obligations of the state. He then discussed the fact that several judgments of the Supreme Court have also stated that the fundamental rights must be interpreted expansively, construed in a liberal manner, and not diminished.

Going back to the argument on India’s international obligations, the counsel noted that ratification of the ICCPR cannot be an empty action, and that the obligations under international instruments must be applied under domestic law. Under the ICCPR, member states have an obligation to “respect”, i.e not violate the right; “protect” i.e protect against interference by private parties and “fulfill”, i.e take steps to realise and protect the right. The counsel also highlighted the parameters accepted under international law for any legislation that derogates from human rights i.e. legality, necessity and proportionality.

The counsel then referred to the reports of the United Nations Special Rapporteur on Privacy, which raise concerns regarding mass surveillance efforts by various governments across the world. He also pointed out that the United Nations General Assembly has voiced concerns on the issue of privacy as well, and adopted resolutions to promote the protection of privacy.

He also referred to the Indian Protection of Human Rights Act, 1993, and several case law, including Bachan Singh vs State Of Punjab, Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and the landmark judgments in Vishaka & Ors vs State Of Rajasthan & Ors and NALSA v. Union of India (NALSA) to note the established position under Indian law that international law and India’s international obligations are to be imported into Indian law, either by way of legislation or directly (in the absence of legislation). On the basis of these arguments, the counsel submitted that the provisions of the ICCPR should be read into the fundamental rights under the Indian constitution, and the right to privacy recognised as a constitutional right.

Moving to the issue of defining the right to privacy, the counsel referred to the Supreme Court’s judgment in Gobind vs State Of Madhya Pradesh And Anr, noting that the judgment describes the difficulties in defining the scope of this right, and provides some indicators. Justice Chandrachud observed at this stage that 40 years later, the reading of privacy under this judgment seemed narrow and dated. He mentioned that in today’s digital age, questions of identity and the ability to maintain individual anonymity are of importance. The counsel agreed, noting that this is also of specific importance in some communities such as the transgender community. The counsel and Justice Chandrachud discussed the different facets of privacy in this context, and the need to identify how much information an individual could be compelled to provide the state, and restrictions on the manner in which this information could be used. Justice Chandrachud provided an example of the state maintaining a database of all individuals convicted of a crime, and then using the meta data in this database to profile potential criminals and communities / individuals that are pre-disposed to commit criminal activities. He highlighted that maintaining the database may be acceptable, especially if it was used to provide citizens with socio-economic benefits, but the use of the database to profile individuals without any evidence would be a transgression.

The senior counsel highlighted that as long as a right to privacy exists, the tests for violation of this right could be determined on a case to case basis. The Chief Justice proposed that perhaps a good test would be whether an individual is asked to provide information that bothers / affects their dignity. The senior counsel agreed, submitting that the preamble could be read to say that dignity underlies every right granted under the constitution. He also argued to privacy is essential to dignity, and is the bulwark of the right to personal liberty, citing Suchita Srivastava & Anr vs Chandigarh Administration, Selvi, and NALSA. Noting that privacy depends upon various factors and cannot be categorised easily, the counsel concluded his arguments submitting that (i) the failure to protect privacy as a constitutional right violates dignity, and is therefore a violation of the fundamental rights, and (ii) that privacy is pervasive, like dignity, and is applicable across fundamental rights. He submitted that the right to privacy maybe located in Articles 14, 19 and 21 as previously argued, but that it could not be restricted to these fundamental rights alone.

SC Constitution Bench on Aadhaar and the fundamental right to privacy – How we got here

This week a 9 judge constitution bench of the Supreme Court of India is hearing arguments on whether there is a fundamental right to privacy under the Indian Constitution. In 2012, a petition was filed by Justice K. S. Puttaswamy (Retd) addressing the lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhaar. During the course of hearings between 2013 and 2015, the Supreme Court concluded that the matter holds importance to all the states and union territories to be impleaded as parties to the case and passed an order to this effect. The Court also stated on multiple occasions that the use of Aadhaar numbers cannot be made mandatory for delivery of welfare services by the state. On August 11, 2015 the Court reiterated this position and declared that Aadhaar card will be mandatory only for availing LPG and PDS services.

The principal opposition to Aadhaar in the Supreme Court during the course of these hearings was that the Aadhaar project violates individuals’ right to privacy. However, the Union of India responded to these arguments by stating that the Indian constitution does not provide for a fundamental right to privacy. Noting these arguments, the Supreme Court decided to refer this question of whether there is such a fundamental right to a larger constitution bench for determination.

Our detailed posts on this matter and the reference are available here.

The Attorney General’s arguments that there is no fundamental right to privacy in India rely on two judgments of the Supreme Court – M.P. Sharma v. Satish Chandra (decided by a 8 judge bench in 1954) and Kharak Singh v. State of U.P. (decided by a 6 judge bench in 1962).

Chinmayi’s paper available here discusses these two judgments, and the development and position of the right to privacy in India. The specific arguments made by the Attorney General in the Aadhaar case are addressed in her piece here.

While the constitution bench of the Supreme Court only sat to hear the matter yesterday (July 18, 2017), several other petitions were filed raising issues with different facets of the Government’s Aadhaar project.

In 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, was introduced and passed in the Lok Sabha as a money bill. Senior Member of Parliament Mr. Jairam Ramesh filed a petition questioning this move before the Supreme Court. We have previously written on whether the Supreme Court has the power to judicially review the constitutional validity of introducing the as a money bill.

Over the past few months, the Government has also issued a number of notifications mandating the use of Aadhaar for several services and benefits. Several of these notifications have also been challenged before the Supreme Court. Detailed updates on the proceedings before the Supreme Court in the recent challenge against the mandatory linking of Aadhaar numbers with PAN, and provision of Aadhaar numbers at the time of filing income taxes are available here.

In May this year, a fresh petition was filed requesting for a stay on eighteen Executive notifications, which made Aadhaar a mandatory condition to receive benefits under several welfare schemes. These include compensation schemes for victims of the Bhopal Gas tragedy, the Mid-day Meal scheme as well as Ujjawala, a scheme for the prevention and rehabilitation of victims of trafficking. While the Court was reluctant to issue a stay on separate occasions, the petitioners were allowed to request again that the constitution bench be set up immediately to hear the larger issues of privacy and validity of the Aadhaar project as set forth back in 2015.

As a result of this request, a 5 judge constitution bench was set up yesterday (July 18, 2017). This bench further referred the limited question of whether there is a fundamental right to privacy under the Indian Constitution to a 9 judge bench that is currently hearing arguments from petitioners and respondents. We will continue to provide updates on the hearings as they proceed here on the CCG Blog.

We have also written on a number of the privacy and security concerns with Aadhaar in multiple news media publications available here, here,  here and here, as well as on our blog. Some of these posts are available here and here.

Any queries on these proceedings can be directed to us here.

SC Constitution Bench on Aadhaar and the Fundamental Right to Privacy – Day I

In October 2015, a 3 judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. The reference was mainly to determine the existence of a right to privacy as a fundamental right, after the Government of India argued that there is no such fundamental right under the Constitution of India. The arguments were originally made in Justice K.S. Puttaswamy (Retd.) & Another v Union of India and Others. Under this petition, the Indian Government’s Aadhaar project was questioned on issues such as a lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar in this matter. Several petitions that address various facets of the Aadhaar project have since been tagged with this petition.

Nearly two years after this reference, a 5 Judge constitution bench of the Supreme Court of India (SC) heard arguments on whether the Constitution of India provides for a fundamental right to privacy earlier today. After hearing limited arguments from both sides, the Court decided that this limited question on the existence of a fundamental right to privacy will be heard and decided by a 9 judge constitution bench tomorrow (July 19, 2017).

The proceedings began with the bench asking the respondents to identify the scope of the question before them, and their position on the issue. The Attorney General (AG) stated that while it is admitted that there is a right to privacy under common law, the Constitution of India does not explicitly provide for a fundamental right to privacy. He further stated that based on the judgments in Kharak Singh v. State of Uttar Pradesh and M P Sharma and Others v. Satish Chandra it is clear that there is no fundamental right to privacy under the Constitution of India, and that subsequent judgments on the issue are per incuriam. The AG stated that the issue before the court is whether there is a ground to distinguish these two judgments.

At this stage, Justice Chandrachud observed that these judgments were made on the basis of the prevailing doctrine at the time as described in A K Gopalan v. State of Madras, which treated each fundamental right as an individual and separate right. He further observed that this doctrine was overturned under Maneka Gandhi v. Union of India, which provides for a new reading of fundamental rights, and that the rights must be read together.

Reiterating his earlier argument, the AG observed that the ratio in the Kharak Singh judgment clearly states that there is no fundamental right to privacy under the Constitution of India. He submitted that the immediate issue before the Court should be limited to whether or not the judgments in Kharak Singh and M P Sharma continue to be binding, or have been distinguished by the subsequent judgments (of smaller benches) on the issue.

Justice Chandrachud and Justice Chelameswar both intervened, pointing out that the Kharak Singh judgment is limited to a discussion on the right to privacy in the context of surveillance, and makes specific reference to the Fourth Amendment of the Constitution of the USA in this context. It was observed that while the judgment in Kharak Singh does refer to the lack of a specific right to privacy under the Indian Constitution, this statement is not central to the ratio in the judgment. Justice Chelameswar observed that it is difficult to accept an argument against a constitutional right to privacy if a common law right to privacy exists, and predates the Constitution. He also noted that several (smaller) benches of the court have since recognised the right to privacy under the right to personal liberty.

The AG questioned whether the present 5 judge bench, could overrule the Kharak Singh and M P Sharma judgments which were both made by larger benches (6 and 8 judges respectively).

Justice Chandrachud also subsequently reiterated his observation that the judgment in Kharak Singh was made on the basis of the doctrine set forth in A K Gopalan. This approach has since been discarded post the Maneka Gandhi judgment, which also overruled the Kharak Singh judgment and adopted the minority / dissenting judgment in Kharak Singh.

The Chief Justice of India also intervened, stating that it was unnecessary to further argue the merits of this issue if it needs to be decided by a larger bench, and that it was not necessary for the entire matter (i.e. the entire petition) to be argued before a larger bench. He suggested that the limited question being discussed before the court may be argued before a larger 9 judge constitution bench immediately. He also suggested that once the decision of the 9 judge bench is available, the matter could go back to the original bench that was hearing the petition.

At this stage the counsels for the petitioners observed that several questions relating the existence of a fundamental right to privacy were of constitutional importance, and must be discussed. The counsels stated that several developments have occurred in jurisprudence since the judgments in Kharak Singh and M P Sharma were written, both in India and internationally, and noted that a full discussion needs to be had on the nature of this right. The Chief Justice agreed, and stated that this larger question will be referred to the 9 judge bench. The counsels for the petitioners also argued that subsequent to the decision of the 9 judge bench, the full petition should also be heard before a 5 judge constitution bench, given the importance of the matter.

The order of the Court states as follows: “During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. – 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. – 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position. Before dealing with the matter any further, we are of the view that the issue noticed hereinabove deserves to be placed before the nine-Judge Constitution Bench….

The order does not specify whether the petitions will be placed before the original bench or a 5 judge bench once the 9 judge bench has made its decision.

It has been argued that without the right to privacy, our other rights will not stand for much. The decision of the 9 judge bench will be of importance in determining the validity of the Government’s Aadhaar project. It will also be of equal importance in determining the rights of India’s citizens in a world which affords increasing value to the collection and use of personal information (often indiscriminately), whether for public or private purposes.

Censorship & certification – Outlining the CBFC’s role under law

The Central Board of Film Certification (CBFC) functions as the primary body certifying films for public exhibition in India. It is guided by the Cinematograph Act, 1952, and various rules and guidelines in determining the nature of certification to be granted to a film. However, over the past few months, reports about the CBFC’s alleged overreach – moving from certification of films to moral policing, for instance, by denying certification to films which address LGBTQ issues – have made the news.  This post outlines the legal framework within which the CBFC operates and discuss the prospects for change within this framework.

The CBFC was constituted under the Cinematograph Act, 1952 (Act), which aims to provide for the certification of cinematograph films for exhibition. Specifically, the CBFC was set up for the purpose of ‘sanctioning films for public exhibition’. The law however, also allows the CBFC to require modifications to be made to a film before providing such sanction / certification.

Over time, the CBFC has increasingly used this power to direct cuts in films for various reasons, leading to it being commonly referred to as the ‘censor board’. In recent months, the CBFC has stirred up controversy in relation to certification (or the lack thereof), of films with subject matter ranging from feminism / women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation drive. The increasing possibility that a film will not even be granted certification for public exhibition, has led to fears that self-censorship will become a norm.

This fear seems to have permeated into the online video streaming industry already. Today, it isn’t clear whether streaming service providers are required to abide by the certification norms under the Act. While streaming platforms differ in their approach, and some providers choose to stream unedited i.e. ‘un-censored’ content, others are choosing to make only certified versions of films available online. There have also been controversial claims of service providers choosing to edit / censor content beyond the requirements of the CBFC.

The legal framework within which the CBFC operates is outlined below.

As described above, the CBFC is the sanctioning body which certifies films for public exhibition. The Act also allows for the setting up of regional centers or ‘advisory panels’ to assist the CBFC in its functions.

The Act provides that any person who wishes to exhibit a film should make an application to the CBFC for certification. The CBFC may (after examining the film, or having it examined):

  • sanction the film for unrestricted public exhibition, subject to requiring a caution to be provided stating that parents / guardians may consider whether a film is suitable for viewing by a child if required (i.e. grant a U or UA certificate)
  • sanction the film for public exhibition restricted to adult viewers (i.e. grant an A certificate)
  • sanction the film for public exhibition restricted to members of a certain profession or class of persons based on the nature of the film (i.e. grant an S certificate)
  • direct that certain modifications are made to the film before sanctioning the film for exhibition as described above, or
  • refuse to sanction the film for public exhibition.

The Act, as well as the Cinematograph (Certification) Rules, 1983, also provide detailed procedures for the appointment of members of the CBFC and the advisory panels, and appellate bodies, applications for certification, and appeals to the decision of the CBFC. The Act also provides for revisionary powers of the Central government in relation to the decisions of the CBFC.

In addition to the above, the Act provides principles on the basis of which the CBFC may refuse to certify a film – namely, “if a film or any part of it is against the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of an offence”.

These principles are further supplemented by the certification guidelines issued by the Central Government in 1991, in accordance with the powers granted to it under the Act.

These guidelines provide five objectives for film certification under the Act: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social changes; (d) the medium of film provides clean and healthy entertainment; and (e) the film is of aesthetic value and cinematically of a good standard.

In order to meet these objectives, the guidelines require the CBFC to ensure that films do not contain (a) scenes that glorify / justify activities such as violence, drinking, smoking or drug addiction, (b) scenes that denigrate women, (c) scenes that involve sexual violence or depict sexual perversions, or (d) scenes that show violence against children, among many others.

The language used in many of these guidelines, while perhaps well intended, is vague, and allows for wide discretion in certification subject entirely to the sensibilities of the individual members of the CBFC.

In 2016, the Ministry of Information & Broadcasting set up a committee to evolve broad, but clear guidelines/ procedures to guide the CBFC in the certification of films. The committee was headed by noted film maker Mr. Shyam Benegal. The committee, in its report, has expressed the view that it is not for the CBFC to act as a ‘moral compass’, and decide on what constitutes glorification or promotion of certain issues.

The committee’s report suggests that the only function of the CBFC should be to determine which category of viewers a film can be exhibited to. The committee’s report has suggested new guidelines, with the following objectives: (i) children and adults are protected from potentially harmful or otherwise unsuitable content; (ii) audiences (and parents / those responsible for children) are empowered to make informed viewing decisions; (iii) artistic expression and creative freedom are not unduly curbed in the classification of films; (iv) the process of certification is responsive to social changes.

The committee’s recommendations are yet to be implemented, however, news reports suggest that work is currently underway to modify the new guidelines suggested in the report.

It is interesting to note that the committee’s report does not address the issue of certification requirements for films available on online streaming platforms. In March 2016, the CBFC had suggested that it would require all or film-makers, producers, and directors in India to sign an undertaking stating that they would not share with / release ‘excised portions of a feature or a film to anybody’, including streaming service providers.An affidavit to this effect was accepted by the Punjab & Haryana High Court, which suggested in its order that such steps would be sufficient to ensure that ‘censored’ content would not be available. However, later that year, the Ministry of Information and Broadcasting confirmed in a response to an RTI application, that they do not intend to regulate or censor online content.

Supreme Court considers installation of CCTV units in courts – but will it regulate what happens next?

Earlier this month, the Supreme Court heard a petition seeking directions to ensure audio-visual recording of the proceedings in trial courts. The reasoning behind the request was that recording proceedings would enhance the fairness of trials. The Supreme Court decided to limit the question to whether CCTV (video only) cameras may be installed at various locations in the courts, in order to better serve security and administrative needs.

This is not the first time the Supreme Court has discussed the use of CCTV cameras for security and other purposes. However, there is also no comprehensive law that deals with the use of CCTV cameras and related security and privacy issues.

In the present case, the Court initially noted that multiple courts, including the courts in Gurgaon have undertaken such efforts in the past. The Court then requested the additional solicitor general and a senior advocate present in the court as amicus to visit the courts in Gurgaon, and report on the matter within four weeks. It stated that once the report is received, it will consider directing installation of CCTV (video only) cameras at district courts in various states. It has also indicated that any recordings made by these CCTV cameras will not be available to the public, and will be retained for specified periods of time only.

The Court has considered the use of CCTV cameras in public places in previous cases. In Deputy Inspector General of Police and Anr. v. S. Samuthiram, a case regarding eve-teasing / sexual harassment, the Court took cognizance of such cases and the need for prevention mechanisms. Amongst other things, it directed all states and union territories to install CCTV cameras in public places. The CCTV cameras were to be positioned such that they act as a deterrent to potential offenders, and if an offence was committed, the offenders would be caught / identified.

In Dilip K. Basu v. State of West Bengal and Ors, the Court considered the request of the amicus, and directed state governments to: (a) take steps to install CCTV cameras in all the prisons in their respective states, within a period of one year from the date of the order (but not later than two years), and (b) consider installation of CCTV cameras in police stations in a phased manner depending upon the incidents of human rights violation reported in such stations.

State governments have also, in various instances, directed the installation of CCTV cameras in public places. In Tamil Nadu, the state government has directed that CCTV cameras must be installed in every public building. The cameras must be installed in accordance with the recommendations of the local police officers. Such recommendations may be made for purposes such as ensuring public order or controlling crimes and the reasons for the recommendation must be recorded in writing.

In Chandigarh, the local government released a set of draft rules meant to regulate mobile app-based transport aggregators (such as Uber and Ola). Among other things, these draft rules require that every taxi must install a CCTV unit to monitor activities inside the taxi in real time. The rules suggest that the video feed from the CCTV cameras should be linked to a control room established by the aggregator.

The above are some examples of courts and government bodies providing for installation and use of CCTV cameras and video recordings. There is a common trend among them – the orders and rules only deal with when and where the units are to be installed, and used. They do not, however, provide a procedural / regulatory mechanism to ensure proper, lawful use of such cameras and associated video recordings.

Maintenance of law and order, security, deterrence of criminal activity, and identification of offenders, are all important issues, and appropriate means should be adopted to provide for the same. At the same time, there needs to be a balance between such means, and individual rights, such as the right to privacy. These laws and orders largely deal with installation and use of CCTV cameras in public places, where some may argue that an individual does not have a reasonable expectation of privacy. However, reports suggest there is misuse of CCTV cameras, especially where installed in customer heavy locations such as retail outlets.

Such misuse could be dealt with under some existing provisions of laws such as the Information Technology Act, 2000 – for example under the provision which criminalizes capturing of images or videos of an individual’s private parts, or the data protection rules. However, these laws are of limited applicability, and deal mostly with sensitive personal information, and images or videos of a private / sexual nature. We do not currently have a comprehensive law that deals with  surveillance equipment and its use in public spaces. Although some states such as Tamil Nadu provide that CCTV cameras must be installed based on police recommendations, there is no general prohibition or restriction on their installation and use. Further, there are no specific restrictions on the collection, use, retention, or transfer of any video recordings, or information that is derived from such recordings. There is no mechanism put in place to deal with a situation where an individual’s data is shared without authorization.

Certain authorities within the country appear to have recognized this gap, and taken some steps towards addressing these issues. In Maharashtra, the local municipal corporation in Navi Mumbai has implemented a CCTV surveillance system to help the local police maintain law and order. The corporation has issued a ‘voluntary code of conduct’ in relation to all surveillance camera systems in public and private places. This document attempts to “provide a framework to all the stakeholders so that there is proportionality and transparency in their use of surveillance”. Among other things, it provides that (i) the use of a surveillance system must always be for a legitimate and specified purpose; (ii) establishments must be transparent about the use of CCTV cameras on their premises; and (iii) access to the video feed will be limited and subject to clearly defined rules on persons who can gain access and purposes for which access may be gained.

Even a limited framework such as this, goes a long way towards ensuring transparency and protection of individual rights and freedoms. Perhaps the Supreme Court will provide more nuanced directions, not only on the installation of CCTV cameras, but also on the use of associated video recordings when the matter is next brought up.

Intermediaries v. Copyright Holders: The Delhi High Court Wants to Protect Both

In July 2011, a single judge bench of the Delhi High Court issued an interim order in the case of Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. The bench effectively held Myspace (a social media website) liable for infringement of copyright by third party content posted on its platform. This decision was considered to put a dent in the protection of internet based businesses and intermediaries. Recognising the far-reaching implications of such an order, a division bench of the Delhi High Court has now reversed this decision.

This post focuses on the recent order of the Court, and some of the concepts discussed which may impact the liability of intermediaries and the safe harbours afforded to them.

Background

Myspace is a social media platform, which operates by allowing users to upload content, and view content posted by other users.  Super Cassettes, more popularly known as T-Series, is a music label, and production house which owns rights to a large repertoire of Indian music.

Issues before the court

T-Series alleged that Myspace was infringing its copyright by allowing infringing copies of T-Series’ work to be posted on the Myspace platform. T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages.

The primary issue before the court was whether Myspace, should be held liable for third party content posted on its platform.

T-Series argued that (i) infringing copies of several of its works were available on the Myspace platform, (ii) that Myspace was aware of such infringing material, and (iii) that Myspace was guilty of primary infringement of T-Series’ rights.

Myspace on the other hand argued that the content was user generated, and it had no control over the content. The terms in its user agreement restricting users from posting infringing content could not be held to mean that Myspace was aware of specific instances of infringement. Further, although Myspace did take a limited license from its users to modify the content, such modification was limited to an automated process to insert advertisements. Myspace also stated that it had rights management and notice and takedown processes, which T-Series could use to protect its rights.

Important legal provisions

The arguments of the parties and the orders of the court largely focus on three provisions of law:

  • Section 51(a)(ii) of the Copyright Act, 1957 (Copyright Act), which provides that copyright is infringed when any person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work”. However, an exception is provided, where the person was not aware and had no reasonable ground for believing that such communication would be an infringement;
  • Section 79 of the Information Technology Act, 2000 (IT Act), which provides that an intermediary will be provided with a safe harbour, and not held liable for third party content if
    • The intermediary does not initiate the transmission of content
    • The intermediary does not select the receiver of the transmission
    • The intermediary does not modify the content
    • The intermediary undertakes certain due diligence requirements as prescribed

It further states that to be exempted from liability the intermediary must remove or disable access to the content when it becomes aware that the content is unlawful

  • Section 81 of the IT Act, which states that nothing in the IT Act will restrict any person from exercising rights granted under the Copyright Act.

Decisions of the court:

Interim injunction awarded in 2011

In 2011, the court found that Myspace did ‘permit for profit’ a place i.e. the Myspace platform, to be used for the communication of infringing material. Further, the court also found that Myspace was aware of possible infringement, as evident by the rights management tools it used. In relation to the IT Act, the court reasoned that section 81 of the IT Act overrides the protection granted under section 79. The court also took cognizance of the license taken by Myspace to modify the posted content, and the modifications undertaken in terms of insertion of ads. It stated that as a result Myspace did not meet the criteria for protection under section 79.

An injunction was given requiring Myspace to, among other things:

  • Ensure that no works owned by T-Series would be uploaded on its platform without making enquiries as to ownership / rights to the work.
  • Ensure that as and when the T-Series informed Myspace of any of its works available on the Myspace platform, such work is removed within 1 week of receiving such notice.

Appeal and reversal

Myspace appealed the injunction arguing that it was too wide and impossible to comply with or monitor. It also argued that the subject matter of the injunction was now a matter of public interest, affecting the rights of all intermediaries, and could threaten the way the internet functions. The division bench of the Delhi High Court acknowledged this, and focused on three broad questions after admitting the appeal:

  • whether Myspace could be said to have knowledge of infringement and held liable under the Copyright Act
  • Whether section 81 overrides the “safe harbour” granted to intermediaries under section 79 of the IT Act in case of copyright infringement
  • Whether sections 79 and 81 of the IT Act and section 51 of the Copyright Act should be read harmoniously

Dealing with the first question, the court found that Myspace could not be found to have specific knowledge of infringing acts simply because it:

  • put in place rights management / safeguard tools (which could be used by rights owners to identify and ensure that infringing copies were not uploaded on / removed from the platform), or
  • inserted ads in the content, given that this was done through an automated system.

The court while answering this first question, also discussed at length the nuances of copyright law, and its applicability in the present case. However, the scope of this post is limited to the courts observations in relation to intermediaries and their liability under the IT Act.

In this regard, the court noted that various countries across the globe have safe harbour or similar regimes which protect intermediaries from liability for third party actions. The court noted that Myspace’s business model of providing a platform for the posting of user generated content, brought it within the definition of an ‘intermediary’.

The court then considered the question of whether section 81 of the IT Act, overrides the benefits provided under section 79. The court observed that the “true intent of Section 79 is to ensure that in terms of globally accepted standards of intermediary liabilities and to further digital trade and economy, an intermediary is granted certain protections”. It found however, that section 81 provided a mechanism for private copyright owners to act against intermediaries who posted infringing content themselves.

Next the court considered the distinctions between the mechanisms provided under the Copyright Act and the IT Act to identify whether someone had knowledge of infringing/ illegal content.  The court noted that the Copyright Act provides for liability where the person permits the sharing of infringing content even if they were aware of or have reasonable grounds to believe that the content was infringing. However, the IT Act requires an intermediary to have ‘actual knowledge’. ‘Actual knowledge’ has been held by the Supreme Court in the famous case Shreya Singhal v. Union of India to mean receipt of notifications by a government agency or a court.

The court observed that the provisions of the IT Act have been enacted keeping in mind a digital economy / new technologies. The Copyright Act on the other hand was enacted solely for the purpose of protecting specific rights. It was held that the only logical and harmonious manner to interpret the law would be to read them together.

The court considered two concepts in this context (a) the idea that Myspace should take down any allegedly ‘infringing’ content that matched the attributes of T-Series owned content, and (b) the idea that some of the user generated content may be rightfully uploaded by users even if not by T-Series itself. It also noted that if Myspace took down content in the second case, it risks breach of its contractual obligations to the user.

The court also looked at Myspace’s privacy policy, terms of use, and due diligence practices as required under the IT Act. It was found that Myspace was in compliance with section 79 of the IT Act, and the due diligence procedures prescribed under it. It was observed that “If copyright owners, such as SCIL inform MySpace specifically about infringing works and despite such notice it does not take down the content, then alone is safe harbor denied. However, it is for SCIL to show that despite giving specific information the appellant did not comply with its notice.”

In this regard, the court correctly observed that “To attribute knowledge to the intermediary industry would mostly likely lead to its shutdown, especially where content is of this magnitude and size…. The greater evil is where a private organization without authorization would by requirement be allowed to view and police content and remove that content which in its opinion would invite liability, resulting in a gross violation of the fundamental right to privacy.

Setting aside the 2011 order, this court directed T-Series to provide an updated catalogue of specific works in which it holds copyright along with the location/ URL of such work on Myspace’s website as and when T-Series detects infringement. Myspace was directed to remove/ block access to such content, within 36 hours of receiving notice in accordance with rules prescribed under the IT Act. Myspace was also directed to keep records of all advertisement revenue earned from content uploaded, and removed pursuant to such requests. It is interesting to note here that the court has worked out a balance between the knowledge requirements under the Copyright Act and IT Act (as elaborated in Shreya Singhal v. Union of India) – requiring Myspace to remove content upon receiving notice from T-Series, and not a government agency. This would imply that Myspace has to act on every notice / request for removal of content issued by T-Series in compliance with the court’s order, and remove the content available at the relevant webpage. T-Series does not have to obtain an order of a court / government agency prior to issuing such a notice. In the event Myspace wants to contest a notice issued by T-Series, the burden would be upon Myspace to take the issue up before the court. To some extent this reverses the burden, and doesn’t take into account the intended purpose of the Shreya Singhal order.

However, at a broader level, the court recognised that ‘rapid growth of technology calls for new legislative and judicial approaches’. It called for discussions between the stakeholders, to create a transparent framework for licensing, and exchange of rights information. It also suggested implementation of the 4-step mechanism identified by the OECD – (i) notice and take down (ii) notice and notice (iii) notice and disconnection and (iv) filtering.

The court looked at providing practical solutions for an industry that is outgrowing the law by leaps and bounds. This is a welcome outlook on issues affecting the internet, and one which we hope is adopted widely by the executive, legislature and judiciary.