SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part II)

On the 19th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20th and the 26th of July. Our post discussing the hearing on the 20th of July can be found here. Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the first post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.

Appearing for the respondents, Attorney General K.K. Venugopal started with addressing whether the right to privacy was a fundamental right under Article 21. He read out Article 21, and stressed on the exception of procedural requirements.

Relying on Maneka Gandhi vs. Union of India, he stated that Article 21 is restricted to life and personal liberty. Privacy has not been mentioned in this case, which according to the Attorney General, was a deliberate omission.

Focusing on the structure of Article 21, he stated that the deprivation of rights has been built into it. The principle of deprivation also applies to the right to life and liberty, as a result of which these rights are not absolute. Through the built-in exception, the state can take away the right to life and personal liberty, as is seen in instances of the death penalty and incarceration for crimes.

Referring back to Maneka Gandhi, the Attorney General stated that the procedure established by law has to be ‘just, fair and reasonable’.

At this point, Justice Chandrachud asked about the concomitant rights mentioned earlier, which included the right to travel and also the right to a clean environment and asked why those rights were qualitatively different from a right to privacy.

The Attorney General explained that the right to privacy was a specie of the genus, personal liberty. He went on to state that each fundamental right has several species and sub-species and that by virtue of being a specie, each right could not be elevated to the level of a fundamental right. Each specie would have to be scrutinised in its own context. Privacy may be a specie, but it could not be a fundamental right.

The Attorney General then argued on the assumption that right to privacy is in fact a specie of personal liberty. As an amorphous term, it would have its own sub-species. While stating that privacy had several sub-species of its own, he also forwarded the argument that each of these sub-species could not be elevated to the level of a fundamental right.

The right to privacy, according to the Attorney General, is not a homogenous right.

Referring back to the rights under Article 21, specifically the right to food and shelter, the Attorney General stated that the right to life of others would take precedence over the right to privacy.

He stated that claiming a right to privacy would act against the interests of the 270 million starving people in the country. If the right to privacy would get in the way of the smooth functioning of the Aadhaar system, it would lead to the deprivation of food and shelter for millions, ensured by welfare schemes.

He referred to a World Bank report, which stated that a system like Aadhaar should be followed in every developing country. He also stated that biometric collection of data would not lead to fundamental rights being violated, since the right to life of others would be upheld.

He then went on to discuss the Constituent Assembly Debates and also referred to the 4th Amendment in the American Constitution, and how search and seizures were permitted under the amendment.

He stated that interpretation should be carried out in an object-oriented manner. On the matter of interpretation, Justice Chandrachud enquired if he was endorsing the ‘originalist’ school of interpretation, according to which the original intent of the framers, and not evolved jurisprudence had to be considered.

The Attorney General said that it could be interpreted as the Bench preferred.

Referring back to the point about poverty and deprivation, the Attorney General stated that the right to personal liberty could not exist without the right to life and therefore, if conflicts arose, the right to life would prevail over the right to personal liberty.

He then discussed the rise of privacy as a tort and how it was not “a simple matter”.  Referring to cases from the House of Lords, he stated that developments under privacy could not be contained under one single right.

By relying on case laws of several jurisdictions, he stated that courts have generally refused to formulate a specific right to privacy. Aspects of privacy could form common law rights, not fundamental rights.

The Attorney General once again, revisited arguments about poverty and the right to life of others.

At this point, Justice Chandrachud stated that privacy was not “an elitist construct” and that it was for the benefit of the masses as well.

He elaborated his statement with an example. Referring to health concerns of rural Indian women, he asked if forced sterilization of women with cervical cancer could be protected by any fundamental right other than privacy.

The Attorney General referred back to his previous argument, stating that if handing over biometric data was essential to save lives of other people, should you be allowed to not hand over your data?

On this point, Justice Chandrachud stated that one could not deny their obligation to hand over data, as long as certain conditions were met, stating that if it was going to be used by the state to meet legitimate ends, then the obligation could not be denied. He also stated that private organizations should not be allowed to access data without consent.

Referring back to the nature of the right to privacy, the Attorney General stated that the right was not a composite, homogenous right. He stated that one could not combine diverse sub-specie and refer to them under one nomenclature. The right way would be to investigate each sub-specie.

Justice Bobde enquired about the qualitative difference between a fundamental right to privacy and a common law right. He stated that they were both protected rights and enforceable by law.

The Attorney General stated that the common law right could not be a public law right, and one could only file a civil suit.

Justice Bobde stressed on the qualitative difference and clarified that the above mentioned points were matters of implementation.

The Attorney General stated that unlike fundamental rights, common law rights could not be tested against the constitution. Common law remedies are wide and they could be sought out by a civil suit and damages.  The action itself would be void.

Discussing the matter of pitting fundamental rights against each other, Justice Nariman described the various stages of the right to privacy being recognized, stating that at the first stage every sub-specie of privacy, under the right to personal liberty, would be protected under Article 21. At the second stage, a scheme like Aadhaar would be enacted and at the third stage, one would consider whether the validity of state action was ‘just, fair and reasonable’. He clarified that the process wouldn’t just be limited to pitting one fundamental right against another.

Referring to Article 25, he went on to state that even when there was an express hierarchy between different rights in the constitution, courts had held that those rights would have to be harmonized, and not isolated.

The Attorney General referred back to his contention, stating that the right to privacy could not be realized in a developing country like India. He also expressly stated that the Aadhaar scheme would not turn India into a totalitarian state.

He stated that the right to privacy was vague and amorphous – the construct of privacy was sociological and would not fit in the “jural” context.

At this point, the Bench asked if there could at all be a fundamental right, and clarified that this was a separate question from whether there was a specific right in this context. They clarified that the scope of the case was not considering whether the Aadhaar scheme was fundamental or not. The Bench further clarified that the issue of ‘sub-species’ was not going to be considered in this case either, and stressed on the scope of the case.

Justice Bobde clarified that the petitioners had already stated that the right was homogenous.

Justice Nariman discussed different forms of privacy. He referred to privacy relatable to the body, the two sub-species related to mind, the dissemination of information and private choices. He then enquired as to which of these aspects would not fit under Article 21.

The Attorney General stated that it was circumstantial.

Chief Justice Khehar stated that circumstances would only come up if there was a fundamental right to privacy to begin with.

The Attorney General referred to a list of countries that did not uphold the right to privacy, to which Justice Chandrachud stated that there were several other countries where privacy is a recognized right. The Attorney General stated that only certain jurisdictions would have persuasive value though.

The Attorney General also stated that privacy is a derivative interest and is automatically secured by more concrete rights. Referring back to Justice Nariman’s query about bodily integrity and privacy relating to the mind, he stated that these could be secured by other rights, and that recourse need not be had to privacy. Stressing on the vague nature of privacy as a right, the Attorney General stated that the sub-species of privacy would have to be decided before the constitutional bench.

Justice Chandrachud discussed privacy interests in different contexts. Drawing on the example of an employment form, he stated that if a woman is asked how many children she has or whether she’s married, this may not amount to a privacy concern. But, if the same form asks a woman how many abortions she’s had, there could be a privacy interested involved.

Similarly, if a census form asks what marriage you were born of, this may involve a privacy interest.

However, he went on to state that in a few specific instances, such information could be relevant for legislative interests. As per a Maharashtra legislation, the third child in a family would not be allowed to contest elections. In this context, the state has a legitimate interest in knowing specific kinds of information. Concluding his remarks, Justice Chandrachud stated that the right to privacy was to be calibrated.

The Attorney General then stated that a right to privacy could not be claimed if the information in question is already in the public. He relied on examples of census information and information disclosed for elections.  On the point of elections, the Bench stated that elections would not be a relevant example in this context. This lead to a discussion on the right to privacy and right to information under the Representation of People Act, 1951.

The Attorney General went on to discuss the “essence of privacy” and the disclosure of information under Section 33 of the ROPA, by relying on State of West Bengal vs. Sri Pronab Kumar Sur and Ors, AIR 2003 SC 231. He read out relevant parts of the judgment:

“It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anxious consideration to this argument, I am unable to uphold the same. In this context, I would like to recall the apt words of analyzing the right to privacy as an ingredient of Article 21, it was observed:

“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”…

…When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.”

The Attorney General went on to state that even if there is a right to privacy, it would have to function within certain limitations.

Chief Justice Khehar clarified that privacy was an undefined fundamental right. He stated that even defined fundamental rights had limitations, so if privacy is recognized as a fundamental right, there would be limitations built in.

The Attorney General referred back to the point of the marginalized sections of society in the country and how the right to life of others was paramount.

Justice Nariman interjected stating that similar ‘emotional pleas’ were made when the constitutionality of the right to property was being considered. The right to property was removed from the constitution, without due regard being had to the fact that marginalized sections of society would also benefit from such rights. Similarly, marginalized sections would also benefit from a right to privacy.

Justice Chandrachud agreed, stating that we must not “forget the little man’s right to privacy”. He stated that people who have been marginalized have also suffered terrible harms in the absence of a right to privacy, citing examples of forced sterilization of women after the Second World War.

The Attorney General asked to be allowed to argue the matter in front of the five judge bench. The Bench refused, stating that the reason the present bench was hearing the matter was because the respondents did not agree to argue in front of a five judge bench.

At this point, the Attorney General closed his arguments stating that the:

1) There is no fundamental right to privacy.

2) If there is a fundamental right to privacy, it must be a qualified right, since it consists of a diverse sub-species of liberty and every aspect will not qualify as a fundamental right.

At this point, counsel for UIDAI referred to ‘another dimension’ of the argument, stating that privacy may be a right, but it cannot be a fundamental right.

Arguments will continue tomorrow (27/7).

 

SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part I)

On the 19th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20th and the 26th of July. Our post discussing the hearing on the 20th of July can be found here.Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the second post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.

Appearing for the states of Karnataka, West Bengal, Punjab and Puducherry was Senior Counsel Kapil Sibal.

Mr. Sibal began by stating that the present case is concerned with technological issues that did not exist in 1962 and 1964. Referring to the judgment of M.P. Sharma and Kharak Singh, he stated that these issues could not have been considered in the aforementioned cases. Technology allows the state to be pervasive, invasive, gives it the capacity to empower and disempower, and allows the aggregation and disaggregation of data.

He stated that privacy was not an absolute right and that the court should strike a balance to ensure privacy. He also stated that everyone was entitled to privacy over their own body or their DNA and that the state should not have the authority to take that away.

Mr. Sibal went on to discuss more insidious forms of invasion, referring to technologies that allowed imaging from outside the house. He also referred to technology that allowed smart phones to collect data.

He then stressed on the different forms of data access – between citizens and state & citizens and non-state actors. He stated that technology had advanced to the point where one could track cars and that mobile data is also easily accessible. Mr. Sibal went on to discuss a few more points about technology and its invasive powers.

Justice Chandrachud interjected stating that if data has been shared, it has left your device.  Mr. Sibal stated that while that may be true, certain forms of data are encrypted and do not leave your device, citing the example of WhatsApp messages. Justice Chandrachud stressed on his previous point, stating that apart from the concern of the state breaching your privacy there was also the issue of private actors doing so. He cited the example of booking a cab and the information that is shared in the process. Justice Chandrachud stated that when you book a cab on your phone, the price that comes up is based on your aggregated data, which should be of concern as well.

Mr. Sibal stated that there are laws which restrict state access to those forms of data as well. He cited an Australian statute which would ensure that such data is confidential between the user and the driver, and is outside the states access.

Following from Justice Chandrachud’s concern about private organizations and access, he stated that there were various issues with access to data , categorising them into – state having direct access, state having indirect access and access by non-state actors. Mr. Sibal also drew attention to the problem of data that has been shared with a specific government body, and the confidentiality of that data. He stated that there had to be measures taken to ensure that this data was not shared with other govt bodies without the consent of the concerned individual.

Referring back to the 6 judge and 8 judge bench decisions, he stated that M.P Sharma and Kharak Singh could not prevail in the context of this case. He stressed on the fact that ever since these judgments were passed, the relationship between stakeholders had transferred – in light of which, privacy issues had to be addressed afresh.

He also stated that privacy was an inalienable, tacit right which arose from the desire to be left alone. The right to privacy includes the right to protect the inner sphere; and make autonomous life choices. There are three matters that have to be taken into consideration ; subject matter, relations and state.

Referring back to the various issues plaguing access to data, Mr. Sibal contended that the state was now more powerful than ever and privacy had to be understood on the basis of qualitative relations. These included the relations between the citizen and the state and between the citizen and non-state actors.

Chief Justice Khehar stated that the present case was only limited to discussing whether there is a fundamental right to privacy and that the arguments could not be extended beyond that ambit.

Mr. Sibal discussed the case of Riley vs. California. In this case it was unanimously held that warrantless searches of mobile phones were not allowed; he also discussed how increasing storage capacities of phones allowed more access to data than possible previously. He stated that due to increased storage, we could now infer the date of purchase and other details from a phones data. Continuing with Riley, it was stated that cell phones allow for far more intrusive practices than is possible in the physical realm.

Justice Chandrachud brought up the issue informational privacy and stated that under American case law, it is expressly open and is not a part of liberty, as per Justice Scalia. Mr. Sibal stated that the focus should be on Indian jurisprudence and not on how different jurisdictions go about the issue.

Justice Chelameshwar asked where the right should be located, between Article 19, 21 and 25. Mr. Sibal responded stating that the basic premise is that privacy is an inalienable, natural right and because of its nature could manifest in different ways. It has to be seen on a case to case basis, the nature of invasion has to be determined and due to ambiguity of manifestation, the right should not be restricted.

In support, Justice Kaul stated that due to the changing nature of technology we cannot always know how an invasion would manifest. Mr. Sibal then continued with the discussion on Riley vs. California. He referred back to the qualitative relations between the citizen and the state and between citizens and non-state actors. He mentioned that they were both horizontal and vertical rights.

Mr. Sibal then discussed the ‘reasonable expectation of privacy’ in American jurisprudence. He referred to United States vs. Jones, stating that the expectation arose from the constitution. Justice Nariman stated that the ‘reasonable expectation’ doctrine has a larger jurisprudence.

Justice Chelameshwar pointed out that there was a difference between usage and access. He also pointed out that multiple government agencies, could be one entity in some contexts,  and could therefore get access to confidential data. Mr. Sibal responded stating that confidentiality should be absolute and there should be no access if not permitted.

At this point , Justice Chandrachud asked if protection of data should be limited to only blood and DNA or also to other facets like financial data. He stated that financial data can be imperative in determining criminal offences like tax frauds etc.

Mr. Sibal responded saying that for criminal offences, access should be allowed but the state should only be allowed access for ‘legitimate’ and not ‘compelling’ concerns. He stated that if a data protection law was to be implemented, certain principles would have to be followed – 1) the interference should be necessary, 2) for a legitimate interest, 2) interference should be proportionate and 3) procedural safety should be guaranteed.

Mr. Sibal went on to talk about platforms where confidentiality cannot be maintained, stating that in these instances – it should be ensured that users have knowledge of the same.

He then discussed the need for a data protection law, which would emanate from the right to privacy. He also stated that without this law there would only be tortious remedies.

At this juncture, the bench asked for a copy of the private member’s privacy bill. The Bench then went on to discuss Justice A.P. Shah’s Report of the Group of Experts on Privacy.

Referring to the report by Justice A.P. Shah, Mr. Sibal discussed the status of privacy in other jurisdictions.

Mr. Sibal also stated that the privacy of state’s data was important. In the instance that a non-state actor from another country accessed the states data, it should be prosecutable. Mr. Sibal then discussed legislations from the United States of America and other jurisdictions that ensured that specific forms of privacy were upheld – like the Financial Modernization Act and the Telecommunications Act.

Referring to the same report, the Bench drew attention to the fact that privacy should be sector mutual.

Lastly, Mr. Sibal stressed on the fact that no person should be deprived of their personal liberty.

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 9 Judge Bench on the Fundamental Right to Privacy – Day I

Following from the five-judge bench’s decision yesterday, a nine-judge bench was constituted today to determine the existence of a fundamental right to privacy. Arguments were advanced on behalf of some of the petitioners today. A background to this hearing, and the larger Aadhaar case can be found here.

Senior counsel appearing for Mr. Mathew Thomas commenced arguments today. He began by arguing that both M.P. Sharma v. Satish Chandra (MP Sharma) and Kharak Singh v. State of Punjab (Kharak Singh) were decided when AK Gopalan v. State of Madras (Gopalan) held the field. The view adopted in AK Gopalan was that different fundamental rights operated in individual silos and were to be read separately. This decision was overruled by an eleven-judge bench in R. C. Cooper v. Union of India (RC Cooper).

It was argued that neither of the two decisions in question could be considered good law with respect to their interpretation of fundamental rights, given that the basis for these judgments i.e. AK Gopalan was overruled.

Further, the observation in MP Sharma that there is no right to privacy within Article 20(3) of the Constitution could not extinguish a general right to privacy. With respect to Kharak Singh, it was pointed out that the minority view in the case applied had the correct test and consequently, liberty was not a residuary expression and inherently contemplated privacy.

It was argued that the concepts of privacy and liberty could not be separated. If life and liberty were considered inalienable, so was privacy, as the former could not exist without the latter. Characterising the American jurisprudence on privacy as being rooted in the concept of liberty, and the continental understanding emerging from dignity, he argued that the Preamble to the Indian Constitution considered both to be inalienable values. He contended that privacy was the essence of liberty, and that human development and exercising choice required internal privacy.

It was pointed out that pursuant to the Court’s decision in Maneka Gandhi v. Union of India (Maneka Gandhi), Articles 14, 19 and 21 had to be read together. These rights, he argued, could only exist under a limited government. He pointed out that equal protection of laws under Article 14 would also protect liberty. Similarly, the exercise of choice secured under Article 19 would also require liberty.

On being posed a question from Justice Bobde regarding the facets and contours of the right to privacy, the senior counsel argued that privacy had multiple dimensions. While the Supreme Court had recognised four of these in Gobind v. State of Madhya Pradesh – spatial privacy, informational privacy, decisional autonomy and full development of personality, these were not exhaustive.

The bench also asked if the constitutional right to privacy was broader than the common law right, to which the counsel responded in the affirmative. Justice Chandrachud sought to know if the fundamental right to privacy was applicable horizontally, and if the state had an obligation to legislate to protect this right. This too, was answered in the affirmative.

Senior counsel Soli Sorabjee, who was also appearing for one of the petitioners, argued briefly that the absence of an express right to privacy under Part III of the Constitution did not imply that it did not exist.  He contended that the right to privacy could be deduced from other existing right just as the freedom of the press has been deduced from Article 19(1)(a).

Next, arguments were made by the senior counsel on behalf of S.G. Vombatkere. He argued that there was an unbroken like of decisions recognising a right to privacy for over forty years, and contended that this was an occasion to affirm, and not regress from established precedent.

Further, he clarified that the right to privacy cannot be defined with any specificity. Being multi faceted, it is not capable of an exhaustive definition and therefore must be developed on a case-by-case basis.

He also cited I R. Coelho v. State of Tamil Nadu to emphasize that the Constitution is a living document and the law must continue to evolve in accordance with modern realities.

It was argued that the right to privacy emanates from a joint reading of Articles 14, 19 and 21. He also emphasised that the right to privacy was enshrined under the International Covenant on Civil and Political Rights as well as the Universal Declaration of Human Rights, thereby forming a part of India’s international obligations. He also brought to the Court’s notice that the UN had recently appointed a Special Rapporteur on Privacy and published a preliminary report on Privacy in the Digital Age, signifying that privacy is a contemporary international concern. The Chief Justice remarked that the report acknowledges privacy as a basic human right. Justice Chandrachud questioned the counsel regarding data protection being distinct from privacy. He opined that data protection must be regulated by law, and that privacy could not be considered absolute. At this stage the counsel clarified that he was not contending that the right to privacy was absolute, but merely that it be developed on a case by case basis.

He argued, that what was sought was that privacy be recognised as a fundamental right. Relegating it to the status of a mere common law right would leave it vulnerable to state action and legislation. This hierarchy, in the counsel’s opinion, was an essential limitation on the state’s power.

Moving on, he argued that the fact that the Supreme Court had, over time, articulated over thirty unenumerated rights under Article 21 also went to signify that privacy is a fundamental right.

He reiterated that the majority view in Kharak Singh had been overruled, as made evident in Satwant Singh Sawhney v. D. Ramarathnam, RC Cooper as well as Maneka Gandhi. Tracing the development of the jurisprudence on fundamental rights, he explained RC Cooper had overturned the prevailing view since Gopalan (that fundamental rights operated in distinct silos). In 1976, Maneka Gandhi expressly overruled the majority view in Kharak Singh. In 2014, the Supreme Court reiterated in Mohamad Arif v. The Registrar, Supreme Court and Ors that pursuant to RC Cooper, the minority view in Kharak Singh was good law. Read together, it was contended that the statements in the majority decision of Kharak Singh on the absence of an explicit fundamental right to privacy under the Constitution could pose no bar.

With respect to MP Sharma, it was pointed out that the case operated in a completely distinct area i.e. Article 20(3) of the Constitution which provides that “no person accused of any offence shall be compelled to be a witness against himself”. The contention of the counsel was that privacy emanated from Articles 14, 19 and 21 and thus the observation in MP Sharma could not be considered an obstacle. He pointed out that the Supreme Court had expressly considered MP Sharma in the 2010 decision Selvi v. State of Karnataka and upheld the right to privacy.

He concluded by stating that the mark of a civilisation can be seen in how it treats personal privacy. Without privacy, all rights would be denuded of their vitality.

The senior counsel arguing on behalf of S. Raju began his submissions by stating that both MP Sharma and Kharak Singh only contained one stray sentence on the right to privacy. Whether privacy was a fundamental right was never a question before the Court in either of these cases. On reading relevant extracts from MP Sharma, Nariman J. observed that the 4th Amendment of the US Constitution, (which deals with unreasonable search and seizures, and was sought to be included within our Constitutional scheme), could never have been imported into Article 20(3). Pointing out that 20(3) was along the lines of the 5th Amendment under the American Constitution (which deals with self-incrimination among other things), he stated that the result would have been an anomalous situation as the 5th Amendment could never have been imported into the 4th Amendment.

The senior counsel continued his arguments citing several American cases, starting with the dissenting judgment of Justice Louis Brandeis in Olmstead vs. United States recognizing a right to be let alone, and dealing with the landmark cases of Griswold v. Connecticut and Roe v. Wade to explain how privacy had been developed from the 4th, 9th as well as the 14th Amendment(s).

He also read from Kharak Singh, arguing that with regard to the specific question on whether the judgments in Kharak Singh and MP Sharma still hold – it is important to note that the ratio in both of these cases did not specifically provide that there is no right to privacy. During the course of these readings, it was also pointed out by the bench that even the majority in Kharak Singh seemed to have implicitly recognized a right to privacy, without explicitly stating so. The senior counsel argued that it is anachronistic and paradoxical that after having recognised over thirty different rights under Article 21, the status of the right to privacy was in doubt. He also stated that while the right to privacy would fall within the ambit of Article 21, it would also need to be developed, and may be grounded in Articles 14, or 19, depending upon the issue being discussed.

Before the bench rose, it posed a few pertinent questions to the counsel. Justice Chandrachud pointed out that in several decisions, such as R. Rajagopal v. State of Tamil Nadu and Mr. X v. Hospital Z , the Court had applied the right to privacy horizontally. He sought a clarification regarding the applicability of a fundamental right to privacy against non-state actors.

Justice Nariman and the Chief Justice asked the counsel to clarify the contours of a right to privacy – the definition of the right, the restrictions on the right, and parameters of challenge for an action on privacy, if the right were to be grounded in Articles 14, 19 and 21. Another question that was posed to the counsel was whether the right to privacy would be a horizontal right, and the state would have any responsibility to take affirmative action to protect this right.

The counsels for the petitioners stated that the right would need to be developed on a case to case basis, providing not only for what is, but also for what may be. The counsel and the bench discussed the possibility of providing for various options for defining the right –simply stating that there is a right, and leaving it open to interpretation, or providing illustrations of the facets of the right to privacy.

In response to the questions on the parameters for challenges against a violation of this right, the counsel stated referred to the tests already in place to determine violations of rights under Articles 14, 19 or 21, or any other article that the right to privacy maybe grounded in depending upon the case being discussed.

The petitioners are expected to conclude their submissions within the first half tomorrow, after which the Union of India will put forth its case.

Disclosure: The author assisted the petitioners’ (S.G. Vombatkere) counsel.

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.