Update from the Supreme Court – Aadhaar linking and Sabu Mathew George vs. Union of India

Aadhaar linking 

With regard to the pending matter of linking Aadhaar with certain services, the Bench stated that the hearing for interim relief would take place tomorrow (14/12). In addition, the Centre issued a notification on the 12th of December, stating that the deadline for linking Aadhaar with bank accounts, which was the 31st of December, was extended indefinitely. On the 13th of December however, this deadline was fixed as the 31st of March. Our coverage of the Aadhaar linking matter can be found here and here.

Sabu Mathew George vs. Union of India

Today, the Supreme Court heard the ongoing matter of Sabu Mathew George vs. Union of India. In 2008, a petition was filed to ban advertisements endorsing sex-selective abortions from search engine results. Advertisements endorsing sex selective abortions are illegal under Section 22 of the PNDT Act (The Pre-conception and Pre-Natal Diagnostic Techniques Act), 1994 Act. Several orders have been passed over the last few years, the last of which was passed on April 13th, 2017. Following from these orders, the Court had directed the Centre to set up a nodal agency where complaints against sex selective ads could be lodged. The Court had also ordered the search engines involved to set up an in-house expert committee in this regard. The order dated April 13th stated that compliance with the mechanism in place would be checked hereinafter. Our blog posts covering these arguments and other issues relevant to search neutrality can be found on the following links (1, 2 and 3).

In today’s proceedings, the matter was disposed off.

Senior counsel Sanjay Parikh appearing for the petitioners started off by commenting on the working of the nodal agencies and the limits within which they function. He stated that search engines were ‘washing their hands off’ and trying to pawn off their responsibilities to the government.

Counsel for the respondents argued that the petitioners displayed a fundamentally incorrect understanding of how the internet functioned. They stated that a blanket ban on content, as desired by the petitioners, would not be possible.

The respondents then stated that problematic content was taken down in the time period stipulated in the earlier orders. The petitioners refuted this statement.

The respondents once again stated that the petitioners ‘betrayed a lack of understanding’ of how search engines functioned.

The petitioners stated that search engines have been much more proactive and have had more success in taking down content related to child sexual abuse material and terrorism. As per the petitioners, this implies that search engines are capable of removing content in an efficient manner.

The respondents stated that material relating to sexual abuse usually relates to images and other visuals, as opposed to search terms or words. They stated that this was an important distinction, and would determine the extent to which search engines could efficiently take down content.

Referring to the affidavit filed, the petitioners reiterated that the government and the nodal agency were ‘helpless’ and would need further cooperation to prevent content from disseminating.

To this, the respondents stated that the government of India should block problematic URLs.

The petitioners then drew attention to the magnitude of illegitimate content on the internet, by discussing statistics from a YouTube search.

At this point, Chief Justice Dipak Misra interjected by stating that nodal agencies had to function in a competent manner and ensure that complaints were addressed in the requisite time period.

The petitioners responded stating that nodal agencies were finding it difficult to efficiently regulate content, since the takedown of URLs did not affect the availability of related illegitimate content on the internet.

The respondents then outlined the constraints within which search engines functioned. They stated that a search engine could only de-index illegitimate content on the internet, and that the content would continue to exist on the internet otherwise. They remarked on safe-harbour exceptions and also stated that filtering and indexing is an algorithmic process, which could only be regulated to a certain extent. Reiterating on the algorithmic nature of the process, they stated that ‘one step could not be removed from the process’.

They also reassured the petitioners that any problematic URLs, that they were intimated of, would be removed. However, proxy websites with similar content could still crop up. They stated that the possible permutations and combinations were endless, and eliminating search results was not possible. However, sponsored ads could be dealt with effectively.  They also stated that dealing with every instance of infringement on an individual level would be impossible.

At this point, the Chief Justice asked the respondents to elaborate on what could be done.

The respondents stated that there was a need to understand the technology better.

The Bench then asked the petitioners if they could interact with the committee to better understand technical solutions.

Mr. Parikh, referring to an affidavit filed, stated that Google, in 2014, had displayed the ability to ‘proactively’ takedown content, without being informed by external bodies.

The respondents stated that they would look into this.

The Bench concluded by stating that the nodal agency should hold a meeting with the respondents and the petitioners within 6 weeks.

Chief Justice Dipak Misra read out the order.

Mr. Sanjay Parikh appearing for the petitioners stated that the nodal agency, despite the orders passed, had not been able to stop the offending material from being used. According to Mr. Parikh, search engines alone have the potentiality to deliberately remove offending material. Mr. Parikh has also stated that there are other ways in which offending content can be removed by the search engines.

The counsel for the respondents have stated that content can only be removed once it is pointed out, and once a specific URL is specified. There are other permutations and combinations to consider while regulating search results.

Senior Counsel Pinky Anand has stated that the nodal agency is hard at work and addresses complaints efficiently whenever it receives them.

The matter was disposed off.

 

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Update on Aadhaar hearing

In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of a fundamental right has been upheld, challenges against the Aadhaar programme are yet to be adjudicated upon.

On the 30th of October, the Chief Justice stated that a Constitution Bench would be constituted and the Aadhaar linking matter would be heard in the last week of November, 2017. More on this can be found in our post here.

Today, the matter was mentioned again.

The Attorney General stated that the hearing should be scheduled for the end of January or the beginning of February, since it would take 6 weeks to conclude. He also made reference to a white paper on data protection the Srikrishna Committee was about to release, and stated that the hearing should commence after these recommendations were considered.

At this point, Mr. Shyam Diwan stated that interim relief in the form of an order should be granted, if the matter could not be heard before the 31st of December. Mr. Diwan reiterated that interim relief was promised if the matter went on beyond the 31st of December.

The Attorney General mentioned that since the matter was of national importance, it would be best for it to be heard before the constitutional bench.

The Chief Justice stated that interim relief would have to be passed by the constitutional bench as well.

Presently, it is unclear whether the matter will be heard next week and dates for hearings in January and February have also not been mentioned.

Update on Aadhaar hearing

In October 2015, a 3 judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of a fundamental right has been upheld, challenges against the Aadhaar programme are yet to be adjudicated upon.

Today, the Supreme Court decided on a date to continue hearing these challenges.

The Attorney General started off by addressing the orders passed and the Data Protection Committee’s pending report. He stated that they would prefer to argue the case in March, as mentioned previously.

At this point, the Chief Justice suggested hearing the matter in January.

Senior Advocate Gopal Subramaniam reiterated that 8 interim orders, related to Aadhaar linking, had been passed. He stated that if the hearing was to be held at a later date, the voluntary nature of such linking and a lack of compulsion had to be guaranteed.

Senior Advocate CA Sundaram appearing for the State of Maharashtra stated that regardless of an interim order or a final order, the case would still have to be argued. He also stated that the hearing should be held soon, since the matter had been in Court for a while.

The Chief Justice stated that a Constitution Bench would be constituted and the matter would be heard in the last week of November, 2017.

Update:  The deadline for linking Aadhaar with bank accounts is the 31st of December and the deadline for linking with mobile phones is the 6th of March. Contrary to media reports, this deadline has not been extended. 

In the event that the petition is not heard in November, the Court may issue interim orders to stay such linkings.  

 

CCG on the Privacy Judgment

Written by the Civil Liberties team at CCG

A 9 judge bench of the Supreme Court of India passed a landmark judgment two weeks ago, which unanimously recognized the right to privacy as a fundamental right under the Constitution of India. The Court found the right to privacy to be a part of the freedoms guaranteed across fundamental rights, and an intrinsic aspect of dignity, autonomy and liberty.

In 2012, a petition was filed before the Supreme Court by Justice K. S. Puttuswamy (Retd.), challenging the validity of Aadhaar. During the course of the hearings, the Attorney General argued that the Supreme Court in M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1962) had found that there was no fundamental right to privacy in India, because of which its position in the Indian Constitution was debatable. As a consequence, the Court in its order on August 11, 2015 referred the question to a Constitution bench of the Supreme Court. Last month, the Constitution bench decided to refer the matter to a 9 judge bench, in view of M.P. Sharma and Kharak Singh being decided by an 8 judge bench, and a 6 judge bench respectively. A timeline of events, from the filing of the petition, to the constitution of the 9 judge bench, may be found here.

During the proceedings, the petitioners broadly argued that M.P. Sharma, and Kharak Singh were no longer good law; that privacy was an essential component of liberty, dignity and other core aspects of the Constitution; and the fundamental right to privacy could be located in a combined reading of the rights under Part III of the Constitution. Further, they argued that India’s international obligations presented an imperative to recognize the right. The respondents argued, among other things, that privacy was a vague concept, of which only certain aspects could be elevated to the status of a fundamental right, if at all. They argued that the right could be protected through the common law, or by statute, and did not need the protection of a fundamental right. Further, that the right to life, and the concomitant duty of the state to provide welfare, must trump privacy. An index of our posts reporting the arguments is also available below.

The petition and reference posed some critical questions for the Court. The Court had to evaluate whether privacy, as argued, was just an alien, elitist construct unsuitable to India, or a necessary protection in a digital age. It was further tasked with defining its safeguards and contours in a way that would not invalidate the right. Chinmayi Arun’s piece specifically addresses these concerns here.

Fortunately, the Supreme Court also has an illustrious history of recognizing and upholding the right to privacy. The Centre for Communication Governance recently published an infographic, illustrating the Court’s jurisprudence on the right to privacy across 63 years.

The Court eventually decided on an expansive articulation of the fundamental right to privacy. However, the judgment raises a few crucial implications. We at the Centre for Communication Governance have presented our analysis of the judgment in various news media publications. Chinmayi Arun, our Research Director, has presented her views on the judgment as part of a panel of experts here, and in an interview, here. She also argues that the Court seems to have left a significant leeway, presumably for intrusion by the state. Smitha presents a detailed assessment of the implications of the right to privacy here. The judgment has also been lauded for its critique of the Suresh Kumar Koushal v. NAZ Foundation, which recriminalized consensual same-sex intercourse. As Arpita writes here, a strong formulation of the right to privacy, with its close connection to bodily integrity, can forge a more progressive expression of the rights of women and sexual minorities.

While the judgment is a step forward, its effect and implementation are yet to be seen. Recently, in the ongoing matter of Karmanya Singh v. Union of India (WhatsApp data sharing case), the Puttaswamy judgment was visited. Following from the judgment, the petitioners argued that the state should protect an individual’s right to privacy even when it is being infringed by a non-state actor.

 Reports of arguments made before the Supreme Court:

SC 9 Judge Bench on the Constitutional Right to Privacy – Day VI (Part II)

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. Today’s hearings have been divided into two posts, the first post can be found here.

Counsel Gopal Shankarnarayan appeared for the Centre for Civil Society.

Mr. Shankarnarayan commenced his arguments by stating that the judgments of M.P. Sharma and Kharak Singh were correct and that there is no fundamental right to privacy.

He stated that following from the petitioner’s arguments, Cooper’s overruling of Gopalan would be erroneous. He also stated that 96 judgments between 1950 and 1970 had not used that parameter.

He then discussed the consequences of allowing for a fundamental right to privacy. He started by asking how such a right would be tested, stating that there would be a different test in each Article.

He then remarked upon the fact that ‘persons’ were protected under Article 19 and ‘citizens’ were protected under Article 14. He stated that if one was to blindly accept the standard in Maneka Gandhi case, that all rights flow freely into each other, then the position of non-citizens would be unsure. He also stated that there was a necessity to understand the difference between persons and citizens in the context of the Gopalan and Maneka judgments.

He discussed a case, Munn vs. Illinois and then stated that the right to privacy was flowing from Article 21. He also stated that life and personal liberty could be subject to expansive interpretation.

He then stated that the argument that MP Sharma and Kharak Singh do not deal with privacy, and could be sustained.  He also stated that only certain aspects of privacy could be elevated to the level of a fundamental right.

Mr. Shankarnarayan stated that privacy could be conceptualized as being broader than what was being argued.

He then went on to discuss medical privacy. Referring to pre-natal sex determination, he stated that privacy could not be claimed if there was a competing issue with the PNDT Act, for instance. He also discussed the ‘right to refuse care’ in this context.

He stated that large aspects of privacy had already been covered by statutory provisions. He mentioned the DNA profiling bill and the CrPC.

Referring back to the consequences of a fundamental right, he stated that such a right could not be waived under any circumstances. He stated that the doctrine of waiver could not be introduced in the Indian Constitution. He substantiated this claim by referring to the case of Basheshar Nath vs. CIT.

At this point, Justice Bobde asked if there were fundamental rights that could be waived, to which Mr. Shankaranarayan responded in the negative.

Mr. Shankaranarayanan then stated that the assumption was that if a separate right to privacy did not exist, there would only be statutory protections. He said that this wasn’t the case as privacy would still be provisionally recognized.

Referring back to the respondent’s arguments about pitting the right to life of others vs. the right to privacy, he stated that the majoritarian view of the ‘elite’ could not take over. Relying on the NAZ foundation judgment, he stated that the ‘miniscule minority’s rights could not be given precedence:

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

Arguments then turned towards discussing the import of provisions from the UDHR, he stated that not all basic principles are found in Part III of the constitution.

Mr. Shankaranarayanan concluded his arguments and Mr. Arghya Sengupta, appearing for the State of Haryana and the TRAI, commenced his arguments.

He started by referring to the doctrine of ‘purposive limitation’, which was a cardinal principle of data protection.

He then stated that the actual implementation of these principles was difficult, since the structure of these contracts allowed them to share information with other connected bodies.

Referring to Justice Chandrachud’s ‘zones of privacy’, he stated that the nature of the right was different in each zone and not just state involvement. He then stated that the Bench should not read in general fundamental rights like the petitioners were asking.

Mr. Sengupta then stated that according to his submission, privacy was the right to be left alone and denotes that ‘everyone else would have to stay off’. He concluded by stating that privacy was just the formal construct of liberty.

Referring to the case X vs. Hospital Z, he stated that the patient had the liberty to disclose or not disclose certain information and that dignity was upheld in this case.

He stated that privacy was a liberty claim and that to determine whether there was a right to privacy, there would have to be a case by case determination of whether there was a personal liberty or any other liberty and not just a claim to privacy.

He laid down a three fold test, where one would have to determine if there was a liberty interest, if this interest lied under personal liberty or any other liberty like freedom of religion and what the restrictions would be.

He discussed the right to privacy and how it could not be a ground to test legislations. Referring to the case Planned Parenthood vs. Casey, He then stated that privacy is not all prevalent and can only be found in liberty. He stated that the right to not disclose had no right of its own.

Referring to the Hohfeldian construct of jural opposites, he asked what the nature of the right would be, stating, ‘the right to do what?’. He mentioned that liberty would be a privilege and there would be a corresponding right to stay off.

He then briefly discussed the Auto Shankar case in the context of reasonable restrictions.

The arguments then turned towards discussing the nature of a right to privacy  and how it would be overbroad and could therefore not be introduced.

Justice Bobde clarified that under Hohfeld’s structure, it would be the power to stay off, not the right.

Lastly, Mr. Sengupta stated that data protection was a horizontal issue and vastly complex, and was not the same as a privacy concern. Mr. Sengupta concluded his arguments and the petitioners commenced their rebuttal, starting with Senior Counsel Gopal Subramaniam.

The senior counsel stated that as per Keshavnanda Bharati vs Union of India, the social good and welfare argument was rejected. He stated that the minority opinion infused meaning.

He then stated that constitutional words were not restrictive, and there had to be a sense of fullness while interpreting them. Mr. Subramaniam went on to state that life and liberty came from Descartes, Mill and Rousseau and not merely from the Magna Carta as mentioned by the respondents.

He also referred to the incidents that took place after the Second World War, stating that nothing could be done by which liberty would be diminished.

On the Gopalan principle, he stated that it was followed by Justice Ray in Keshavnanda Bharati and was also followed in Kharak Singh. He also remarked upon its use in the Indira Gandhi case. He then referred to Justice Khanna’s opinion on inalienable rights and that the right to courts could never be taken away.

He also discussed the Maneka Gandhi and Minerva Mills judgment, remarking on the nature of inalienable rights in them.

On the matter of privacy, he stated that ‘private choices’ had been discussed in the Maneka Gandhi judgment and ‘dignity’ was used in the Keshavnanda Bharati judgment.

He then discussed to the status of privacy in other jurisdictions, referring to the standard in South Africa where privacy, dignity and liberty were held to be intertwined.

The senior counsel lastly mentioned a passage from Keshavnanda Bharati, referring to Chief Justice Sikri’s opinion on the republic also importing Article 14, and concluded by stating that the state was the custodian and would have to protect these rights.

Next, Senior Counsel Kapil Sibal commenced his arguments.

He started off by remarking on the unique persona of individuals and how ‘each person has moments of solitude’. He questioned where the ‘right to a private moment’ could arise from.

At this point, Justice Chandrachud questioned whether privacy was a subset of liberty. To this Mr. Sibal responded stating that it was a golden thread that ran through liberty. Justice Chandrachud asked if there was a difference. Mr. Sibal stated that privacy was more fundamental than liberty.

He then remarked on the changing nature of the state and the need for changes. Justice Chandrachud responded stating that the state’s actions will be in the protection of absolute liberty.

The senior counsel concluded his arguments and Senior Counsel Shyam Divan commenced his arguments.

The senior counsel stated that privacy encompassed many other aspects, like creativity and psychological well-being. He referred to a quote from John L. Mills on privacy being the last right.

He referred to privacy as a bundle of rights, and went on to distinguish 4 areas of privacy. These included personal information, value autonomy, physical space and the interface of property. He stated that the interaction and overlap of these factors should make way for a general protection.

He referred to provisions from the Census Act, specifically Section 15, stating that recorded/tabulated information could not even be summoned by the Court of Law.

He also that privacy as a right was concerned with more than just data protection, but was also concerned with surveillance, bodily integrity and self-determination.

The senior counsel concluded his arguments and senior counsel Anand Grover commenced his arguments.

The senior counsel started off by discussing Kharak Singh and the notion of liberty. He remarked on the discussion of privacy being a common law right, stating that it could not be accepted in India. He also mentioned that elevating a common law right or a statutory right to a fundamental right could be possible.

He mentioned the right to health and how it was now progressively realizable.

Remarking on the status of privacy in other jurisdictions, he stated that American jurisprudence was considered lacking in this regard and that jurisdictions like Canada should be paid attention to. He discussed the notions of liberty and security in Canada, which also read in privacy, stating that there was a reasonable expectation of privacy. He also remarked on the European Court devising their own tests for privacy and the recognition of the right by the Inter-American Court.

He then discussed the landmark judgment, Loving vs. Virginia, by which inter-racial marriages were recognized in the United States, stating that the concepts of choice and privacy were integral to this judgment.

Lastly, he discussed the movie ‘Aligarh’, and the judgment the story was based on. He stated that the Allahabad High Court recognized a right to privacy in this regard.

The senior counsel concluded his arguments, and senior counsel PV Sundaresan commenced his arguments.

He remarked on the private nature of thoughts and feelings, stating that a person had a right to be privy to them. He stated that liberty was not limited to physical liberty and mentioned that the allegedly vague nature of privacy was not concrete enough to be a ground for denial.

Mr. Sundaresan concluded his arguments and Senior Counsel Meenakshi Arora commenced her arguments.

The senior counsel stated that under Article 372 all laws shall continue to be protected. She also stated that protection under Article 21 were always present, even before the Constitution was realized.

Referring to Articles 528-531, she remarked upon Justice Khanna’s reading of the Brandeis judgment.

She then remarked upon the nature of fundamental rights, stating that there was no fixed content and that generations must pour their content into the rights.

She also stated that privacy was a multi-faceted right and that it was not open to the state to say that it was an elitist measure. She also stated that fundamental rights could not be pitted against each other to the extent that the right to life of others could only be upheld if privacy is given away. She remarked upon the nature of state as parens patriae and how all rights needed to be protected.

Senior counsel Meenakshi Arora concluded her arguments, and senior counsel Sajjan Poovayya commenced his arguments.

He discussed the collection of data and 26 statutes where privacy was recognized and the mechanism in place to protect the rights.

He remarked upon the respondent’s arguments, stating that they argued that there was a right but not a fundamental right, which seemed merely like a matter of nomenclature.

He concluded his arguments and lastly, Senior Counsel Arvind Datar commenced his arguments.

He stated that Part III of the Constitution was concerned with fundamental rights and if privacy was seen as a sub-set to a fundamental right, then by virtue of being a subset to a larger set, it would also be a fundamental right.

He also remarked upon the respondent’s arguments about privacy being vague, stating that the correct postulation would be to say that it was incapable of precision or a precise definition, and not merely vague. Lastly, he remarked upon the danger of omitting a right like privacy in 2017.

The hearing has concluded and the judgment is reserved.

 

SC 9 Judge Bench on the Constitutional Right to Privacy – Day VI (Part I)

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.

 

SC Constitution Bench on the Fundamental Right to Privacy – Day V

Last week, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing last week’s hearings can be found here and here. Today, arguments were advanced on behalf of the states of Maharashtra, Madhya Pradesh, Gujarat and also the UIDAI.

Mr. Sundaram, appearing for the state of Maharashtra, continued with his submissions from last week.

Referring to the arguments made last week, he agreed that interpretation had to be carried out in a manner which was compatible with changing times. However, he differentiated between interpretation and interruption.

He stated that if the Constitution was silent and if the founding fathers had introduced rights without an ambit then the judges could interpret. But since the founding fathers had considered a right and then rejected it, the intent was clear. Given this context, even if there are different considerations today, the basic structure doctrine, and the balance of powers had to be kept in mind. Reiterating a point made previously, Mr. Sundaram stated that if the right to privacy had to be introduced as a fundamental right, it would have to be introduced by the Parliament through a constitutional amendment.

With reference to the Constituent Assembly debates, where the right to privacy was allegedly considered and struck down, Justice Chandrachud brought up the point that what was considered in these debates was not the right itself, but two specific forms of the right. He stated that the debates referred to the secrecy of correspondence and search and seizure.

To this, Mr. Sundaram responded stating that these forms of privacy were integral to the right of privacy. He also stated that the reason the founding fathers struck down the right was because these specific forms were statutorily protected, which was similar to his contention about statutory protection being adequate, rather than elevation to fundamental right status. Drawing a comparison, he stated that the secrecy of correspondence could be compared to data protection. He also mentioned that data protection could be covered under Article 300A of the Constitution.

Justice Chandrachud stated that a statutory right could be easily abrogated.

Mr. Sundaram responded saying that the fear of abrogation denoted a suspicion and would not be enough.

At this point Justice Chelameshwar stated that data protection was not the only aspect sought to be protected.

Mr. Sundaram stated that the right was still an inchoate right that could not be elevated to the status of a fundamental right.

Furthering his point on the discrepancies that would accompany the right, he mentioned that public and private individuals would be treated differently, as individuals in the public eye may have the obligation to hand over data.

Chief Justice Khehar replied stating that this illustration was not acceptable, as asking a public individual to disclose information was different from the right to privacy and that state action would wholly differ.

Mr. Sundaram stated that the right of secrecy of correspondence was vital to the right to privacy. These aspects however, had been deleted from the Constituent Assembly debates. He also mentioned that the freedom of press was discussed in the debates, stating that while it wasn’t expressly identified, it was considered included in the freedom of expression. As opposed to which, the forms of privacy mentioned above were rejected. Reiterating the point, he mentioned that an individual status was not needed for the right to privacy.

Mr. Sundaram then stated that even if, in light of changing circumstances, the founding fathers intention of deleting the right to privacy was to be ignored – the right would have to be introduced via a constitutional amendment, after specifying that the aforementioned intention was no longer good.

Similar to the Attorney General’s argument in the previous hearings, Mr. Sundaram illustrated a situation where two rights are pitted against each other. One, where there is either a possibility of subsidized food, which would be the result of welfare schemes attached to the Aadhaar system, and the other, where there is the possibility of private information not leaking. Posing the two, he stated that perhaps the availability of subsidized food or welfare was more important.

In response to this point, Justice Chandrachud asked if civil and political rights would be subservient to economic interests. Justice Chelameshwar asked if it would be possible to balance the two needs, and have welfare without invading privacy.

Mr. Sundaram responded by differentiating between the two, stating that the former was a right, and privacy could not be afforded that status.

Referring to the forms of privacy, Mr. Sundaram stated that personal liberty of the physical person is covered under Article 21 and that ‘mind’ would not find its place here.

The Bench asked Mr. Sundaram whether international instruments like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights would have any bearing on fundamental rights, in light of the Protection of Human Rights Act.

Refuting this point, Mr. Sundaram then mentioned that liberty as intended in Article 19, would be read down to only consider ‘personal liberty’ and that civil liberties were not a part of this. Mr. Sundaram stated that ‘personal’ would further constrict the meaning of liberty.

Justice Nariman stated that ‘personal’ should have the effect of contracting rather than expanding.

Mr. Sundaram pointed out that according to the Kharak Singh judgment, privacy would not amount to a fundamental right and ‘ordered liberty’ would be covered under personal liberty.

Mr. Sundaram stated that there was no room for interpretation. He stated that there was a definition distinction between civil liberty, liberty and personal liberty, and went on to a read excerpts that supported his contention.

Referring back to the point about data protection being covered under Article 300A of the Constitution, Mr. Sundaram stated that he supported this contention.

At this point, Justice Chelameshwar asked how Article 300A, which protects the right to property, would cover data protection. Mr. Sundaram stated that in some forms, data can be commercially viable. He referred to the judgment K.T. Plantation vs. State of Karnataka in support, stating that property could be construed widely.

Referring back to the point on international instruments raised by Justice Nariman, Mr. Sundaram reads excerpts from a judgment, Malone vs. Metropolitan Police Commissioner ([1979] Chancery Division 344)

“…First, he said that it was unlawful for anyone to intercept or monitor the telephone conversations of another without the consent of that other. He rested this contention on the right of property, on the right of privacy, and on the right of confidentiality. Second, he relied on article 8 of the Convention, as construed by the European Court of Human Rights, especially in Klass and Others, July 4, 1978. He relied on this in two respects. First, he said that it conferred a direct right on all citizens of the United Kingdom. Second, he said that it aided the courts of this country. It guided those courts in interpreting and applying English law so as to make it accord as far as possible with the Convention; and it provided a guide in cases of ambiguity or a lack of clarity in English law. Mr. Ross-Munro’s third main contention was based on the absence of any grant of powers to the executive to tap telephones, either by statute or by the common law…

…It was common ground that there was no English authority that in any way directly bore on the point. The only English authorities that could be adduced related to arguments for and against the right not to be tapped that the plaintiff claimed for his telephone lines, but did not decide it…

…It is not for me, sitting at first instance, to resolve the variant shades of meaning in the dicta, and I do not attempt to do so. For the present, all that I say is that I take note of the Convention, as construed in the Klass case, and I shall give it due consideration in discussing English law on the point. As for the direct right which the Convention confers, it seems to me to be plain that this is a direct right in relation to the European Commission of Human Rights and the European Court of Human Rights, the bodies established by the Convention, but not in relation to the courts of this country. The Convention is plainly not of itself law in this country, however much it may fall to be considered as indicating what the law of this country should be, or should be construed as being…”

At this point, Justice Chandrachud intervened, stating that this situation would be interpreted differently in India and that the Directive Principles of State Policy would require some form of adherence with international instruments.

To this Mr. Sundaram responded stating that, regardless, this could not give way to a fundamental right to privacy.

Referring to the cases relied on, Justice Nariman stated that they were not relevant, as an ‘intermediate’ path would be relevant in India, similar to the NALSA judgment.

Mr. Sundaram read out excerpts from a few more cases from other jurisdiction and concluded his arguments.

The Additional Solicitor General, Mr. Tushar Mehta appearing for the State of Madhya Pradesh and the UIDAI commenced his arguments.

He remarked on the nature of privacy, stating that the Kharak Singh judgment was to be followed and that privacy could not be afforded the status of a fundamental right. He stated that term was vague and subjective, and that there was a consensus amongst scholars on this point. He also stated that the concept could differ from one person to another. The vague nature of privacy would make it difficult to ascertain what one must abide by to not intrude on another person’s right to privacy.

He also stated that there was a recognized right to privacy, and there was no point in denying its ‘sanctity’. However, this right could be statutorily protected and there was no need to elevate it. He stated that different forms of privacy could be protected under different legislations – like health, financial, etc.

Justice Bobde stated that problems would arise when a legislature denied the right to privacy, not when it was protected.

The Additional Solicitor General replied stating that it could still be protected as a common law right.

At this point, Justice Nariman asked about the consequences of the word ‘unwarranted’ under Section 8(1)(j) of the Right to Information Act, 2005, being considered too vague. He stated that it would not be enough to say that Section 8(1)(j) protects the right to privacy, since the point of debate would be Section 8(1)(j) itself. [Section 8 specifies that certain information is exempt from disclosure ((j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual…)].

Reiterating the point, Justice Bobde stated that in these instances, only a fundamental right to privacy could protect such rights.

The Additional Solicitor General reiterates the point that it could be protected as a common law right, and that Article 14 could declare it arbitrary if there was an invasion of a common law right.

To this, Justice Bobde responded stating that if the state invaded such a right, the invasion could only be tested if there was a fundamental right – it would have to be a fundamental right for a statutory provision voided under Article 14.

The Additional Solicitor General also stated that the mere possibility of a statute being revoked, could not be grounds for a fundamental right being instated.

Justice Chandrachud asked if a citizen would have a right to a remedy if the Aadhaar Act was revoked.

The Additional Solicitor General stated that they could approach the judiciary.

Justice Chandrachud disagreed, stating that those decisions would not be subject to judicial control, and that a statutory repeal would not have to meet the test of Article 14.

The Additional Solicitor General furthered his argument, by discussing whether the right to property could be subject to the same treatment.

He then discussed the ‘hazards’ of elevating the right to privacy to a fundamental rights status. He also stated that the Aadhaar scheme would afford maximum protection of privacy. He then went on to discuss the status of privacy as a right in other jurisdictions.

At this point, Justice Chandrachud asked if there would be a way to protect data, under a data protection law, if there was no fundamental right to privacy – as it could not be tested under Article 14. The Additional Solicitor General responded saying there would be no way to protect such data.

Justice Bobde asked about factors that would qualify a right to be a fundamental right. Justice Chandrachud stated that privacy relays to the core of a human’s existence. Justice Nariman stated that rather than strictly interpreting the Constitution, like a statute, the provisions should be interpreted to give way to the principles. For instance, not actually interpreting the word ‘liberty’ but the principle therein.

Justice Chandrachud referred to a situation where a statute allowed for a strip search and cavity search in a public place and how that would affect a person’s dignity. He stated that this may be a lawful exercise of power.

The Additional Solicitor General stated that the manner of exercising that law was in question, Justice Chandrachud disagreed.

The Additional Solicitor General moved on to discuss how the Aadhaar scheme upheld privacy and would not invade the right at all.

He then went on to discuss certain American judgments, to which Justice Nariman responded stating that the judgments relied on had been heavily criticized.

The Additional Solicitor General went on to read excerpts from cases, like United Stated vs. Graham, where the ‘reasonable expectation of privacy’ was discussed.

He mentioned once again that only a citizen’s name and biometrics were essential, and other details like phone numbers were optional.

He then referred to Indian cases, A.K. Roy vs. Union of India and Shreya Singhal vs. Union of India. He stated that as per the Shreya Singhal judgment, Section 66A was struck down for being vague, suggesting that vague provisions could not be protected.

He also stated that rights under the garb of privacy could cross into hazardous territory.

He then discussed the case of Manoj Narula vs. Union of India, a 2014 Supreme Court case. He read out excerpts from the case:

…Dixon, J, in Australian National Airways Pty Ltd. v Commonwealth, said: ‘I do not see why we should be fearful about making implications’. The said principle has been approved in Lamshed v Lake, and thereafter, in Payroll Tax Case[51]. Thus, the said principle can be taken aid of for the purpose of interpreting constitutional provision in an expansive manner. But, it has its own limitations. The interpretation has to have a base in the Constitution. The Court cannot re-write a constitutional provision. In this context, we may fruitfully refer to Kuldip Nayar’s case wherein the Court repelled the contention that a right to vote invariably carries an implied term, i.e., the right to vote in secrecy. The Court observed that where the Constitution thought it fit to do so, it has itself provided for elections by secret ballot e.g., in the case of election of the President of India and the Vice-President of India…

 The Additional Solicitor General then stated that public interest would be seriously harmed, since nearly 98 percent of the population was covered by the Aadhaar scheme.

At this point, Justice Nariman stated that Aadhaar is not the matter being heard before the Bench and that a fundamental right to privacy which co-exists with the Aadhaar scheme can also be recognized.

The Additional Solicitor General discussed a few Aadhaar related cases, and then concluded.

Senior Advocate Rakesh Dwivedi, appearing for the state of Gujarat commenced his arguments.

Mr. Dwivedi stated that privacy would have different aspects and each one of these would have to be considered in their own contexts to determine whether there could be a reasonable expectation to these claims. He stated that the entirety of the context would have to be considered. He also mentioned a ‘threshold’ that would need to be crossed to get to Article 21.

He then stated that aspects of privacy would arise from a ‘legitimate expectation of privacy’, which would be determined on a case-by-case basis.

Justice Chandrachud made three points about determining privacy in certain contexts:

1) Privacy has to be considered in relation to the individual. We live in a society and interact, we share information and ideas, and any balancing act must take into consideration the corresponding socio-cultural context.

2) All information is a source of knowledge. Privacy cannot be conceptualised to be so far-fetched so as to stifle knowledge.

3) There is a need for innovation, for which the sharing of knowledge is also important.

Mr. Dwivedi accepted these points and went on to discuss the contours of the ‘legitimate expectation’ test, stating that if it was found that there was a legitimate expectation of privacy in a certain case, it could be traced to Article 21. He also stated that a fundamental right to privacy, under Article 21, cannot be considered.

He then discussed how personal information was being handed over voluntarily, often in the context of the Aadhaar scheme.

At this point, Justice Chandrachud asked about autonomy and to what extent it could be recognized.

Mr. Dwivedi responded stating that ‘decisional autonomy’ and the ‘right to choose’ were not aspects of the right to privacy, but would come directly under Article 21. The right to choose a way of life was not relevant to the right to privacy.

Referring to ‘decisional autonomy’ being covered under Article 21, Justice Nariman asked what role ‘legitimate expectation’ played in determining privacy.

Mr. Dwivedi mentioned that it would be covered if someone was being compelled to handover information.

Justice Nariman stated that every time information is handed over, there should be a reasonable expectation that it is only being used specific purposes.

To this Mr. Dwivedi replied stating that it would depend on the context.

Justice Nariman stated that if certain data was not made fully public and only handed over for a specific purpose, there should seemingly be a reasonable expectation that it would only be used for that purpose.

Justice Chandrachud stated that there must be an ‘overarching principle’ across the board, one that would guarantee that information was being used for its intended purpose.

The hearing will continue tomorrow (2/8).