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.

 

Advertisements

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).

 

SC Constitution Bench on the Fundamental Right to Privacy – Day IV (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 and here. Today, arguments were advanced on behalf of respondents, which has been covered in two posts. The first post discusses arguments made by the Attorney General and the second post covers arguments made Senior Counsel CA Sundaram, appearing for the State of Maharashtra.

Mr. Sundaram started off his arguments by posing a few questions and statements.

He first stated that the fundamental right to privacy could not be considered in several facets or aspects, but as a whole. He stated that a fundamental right could not be read in ‘bits and pieces’. He furthered his argument by stating that either it is a fundamental right, or it is not, it could not be considered in fragments.

He also stated that the introduction of a fundamental right could not be done through mere implication and could only be carried out through an amendment.

Lastly, he stated that if privacy was to be recognized as a right, it would have to be traced back to an existing right.

Mr. Sundaram then stated that privacy was an incidental factor of personal liberty. He cited the example of Kharak Singh, stating that an invasion of one’s home was not problematic because of the ‘wish to be left alone’, but because personal liberty itself was being infringed. The manifestation of privacy was incidental.

He then posed 3 questions to the Bench:

1) What is privacy?

2) Would an unambiguous understanding of privacy be possible?

3) Could it be a fundamental right?

Referring to the second question, he stated that an unambiguous understanding could not be possible. He stated that privacy was a concept, and that it could not be afforded the status of a right.

At this point, the Bench asked if fundamental rights like the right to ‘life’ have been defined.

Mr. Sundaram stated that there was a certain amount of exactitude to those fundamental rights, stating that ‘life’ could be qualified in certain ways.

As opposed to this exactitude, privacy is merely a concept. Chief Justice Khehar stated that dignity was also a concept.  Justice Nariman stated that privacy could be seen as a ‘major facet’ of dignity.

Mr. Sundaram stated that this conceptualization would go against the petitioner’s submissions, as they held that liberty and privacy were inter-changeable. Chief Justice Khehar disagreed with this point.

Mr. Sundaram continued, stating that if there were to be a fundamental right to privacy, then it would be afforded a status above what could otherwise be a common law right.

Referring back to the matter of defining privacy, he stated that according to the Constituent Assembly Debates fundamental rights were to be as exact as possible, and not unambiguous.

Justice Chelameshwar stated that it was an ‘attempt’ and perhaps not an exactitude.

Referring to the fundamental right of speech and expression, Mr. Sundaram stated that in some instances, the attempt is exact. He stated that speech has a more exact meaning, as compared to privacy, which is just a concept.

Justice Chelameshwar asked if liberty could be held to be affected by data collection.

Mr. Sundaram stated that the petitioner’s submission held that data collection affected privacy and that was presumably the scope of the current hearing.

Mr. Sundaram then stated that an action could only be tested against a fundamental right and that privacy could not be ‘injected’. At this point, Justice Nariman pointed out that dignity was also injected, which is how it is now read with right to life.

Mr. Sundaram stated that right to dignity was not a fundamental right as such, right to life was the fundamental right. He also stated that the preamble makes mention of dignity, but not privacy. Privacy was never a natural right.

Referring back to Mr. Sundarams argument about open defecation and the right to live with dignity, Justice Bobde stated that there are instances where dignity would not be possible without privacy. In the instance of open defecation, the issue is also a lack of privacy, not just dignity.

Mr. Sundaram retorted stating that dignity is incidental to the right to life, and privacy is incidental to dignity.

He then continued with the argument that privacy was an ambiguous, inchoate right, with no exact definition.

An attempted definition of privacy could encompass the ‘right to be left alone’. He said that this conception of the right was the anti-thesis to the concept of society. He referred to a quote by Aristotle, “He who is unable to live in society, or who has no need because he is sufficient for himself, must be either a beast or a god”, stating that this conception could be problematic. He also referred to the Oxford Law dictionary definition of privacy which included – being ‘withdrawn from society’ and the ‘freedom from disturbance and seclusion’. Lastly, he referred to the 2003 Supreme Court case of Sharda vs. Dharampal, quoting the definition of privacy in the case – “”Privacy” is defined as “the state of being free from intrusion or disturbance in one’s private life or affairs”.”

Following from the above, Mr. Sundaram stated that if any of the above were to be considered, the fundamental right would have to include the right to be left alone.

He then goes on to state that conflating privacy and liberty would be fallacious. He referred to the standard in the Kharak Singh judgment and said that it was correct, stating that there would have to be a direct and tangible infringement.

In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness.

At this point, Justice Nariman interjected stating that the Kharak Singh judgment was incorrect. He further stated that movement and liberty had to be considered together. He also stated that the judgment was contradictory as far as privacy was concerned, since it upheld cases like Wolf vs. Colorado and Semayne’s case, but rejected the right of privacy.  Mr. Sundaram then stated that the issue in Semayne’s case could be traced back to a right to property and not liberty, the Bench disagreed. The discussion then veered towards whether privacy could be tangible right.

Referring back to the Kharak Singh standard, Justice Nariman stated that tangibility was only limited to Article 19(1)(b) in the case.

Mr. Sundaram pointed out that in Kharak Singh the issue was a physical intrusion, which could be traced back to the concept of ‘ordered liberty’, as postulated by Justice Frankfurter in Wolf vs. Colorado – which surveillance could not be. He then stated that privacy could not be a standalone right, and that the larger fundamental right would also be considered effected if privacy is effected.

At this point, the Bench enquired about instances where privacy is affected but a fundamental right is not. This was followed by Mr. Sundaram presenting examples.

Mr. Sundaram once again reiterated that there was no fundamental right to privacy, he then went on to analyse Govind vs. State of Madhya Pradesh.

He stated that this judgment had been erroneously understood for a while now, and that subsequent judgments have relied on it, stating that there is a right to privacy.

According to Mr. Sundaram, what was considered to be an establishment of a right to privacy was merely an assumption of privacy.

The Bench agreed that there may have been a misinterpretation.

Mr. Sundaram then stated that there was no fundamental right to privacy in the United States either. He cited the case of Younger vs. Harris, 401 U.S. 37 (1971), which involved a compilation of the social history of juveniles. He also cited Roe vs. Wade and Skinner vs. Oklahoma to state that there was no fundamental right to privacy recognized, only zones of privacy. Zones of privacy could be created by certain constitutional guarantees, but would have to be limited to ‘ordered liberty’.

Referring to the judgment of Whalen vs. Roe, Mr. Sundaram states that it does not ipso facto create a constitutional right to have government protect privacy. The case stated that there was no general right to non-disclosure. He also stated that government actions were to be weighed against rights.

Justice Nariman, referring back to the limitation of privacy in American jurisprudence, stated that privacy would need to consider more than just ‘ordered liberty’ and should also consider dignity.

Mr. Sundaram stated that data could be protected through common law rights, statutory rights and regulatory mechanisms, and not through privacy.

Justice Chelameshwar responded stating that these forms of rights could be easily abrogated.

Mr. Sundaram then stated that including an inchoate provision like privacy could be dangerous. The interpretative process would be continuous.

Justice Chelameshwar stated that this could be true of any fundamental right.

Mr. Sundaram also stated that “virtually any government action would infringe the right to privacy”. He then went on to discuss the constitutional history to protect of privacy. He discussed how personal liberty was previously ‘civil’ liberties, but was narrowed down. He stated that ‘personal’ was brought in to qualify liberty and that price control may also be a violation of privacy. He then reiterated the point of privacy being deliberately dropped in the Constituent Assembly debates, to which Justice Nariman responded stating that ‘due process’ was given the same treatment too.

Mr. Sundaram reiterated that personal liberty and privacy were to be considered separately.

Arguments will continue on Tuesday (1/8).

SC Constitution Bench on the Fundamental Right to Privacy – Day IV (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 and here. Today, arguments were advanced on behalf of respondents.The first post discusses arguments made by the Attorney General and the second post covers arguments made Senior Counsel CA Sundaram, appearing for the State of Maharashtra.

The Attorney General started off by remarking on the relevance of the import of the M.P. Sharma and Kharak Singh judgments in front of a nine-judge bench.

He stated that the founding fathers never intended to establish fundamental rights along the same lines as the fourth amendment in America, as was previously established by referring to Constituent Assembly Debates.

He stated that even if the petitioner’s submissions were to be agreed with, and if privacy was recognized as a right, it would be one of many rights and would come under an umbrella of rights. He reiterated the point that all aspects of privacy would not qualify as fundamental rights. He also stated that the right to life of others would take precedence over the right to privacy as a fundamental right.

Referring to his earlier arguments, the Attorney General stated that privacy was merely a sociological notion and could not qualify as a ‘jural’ concept and that it had little more utility than the pursuit of happiness.

He summarised his submissions by stating that first, there is no fundamental right to privacy. Alternatively, if there is a right to privacy, and it can be traced back to liberty, it is a ‘multi-faceted right’ and every right could not be elevated to the status of a fundamental right.

There was a second alternative to the primary submission – that in any event, where the fundamental rights of others stand defeated if informational privacy is claimed, right to privacy could not be claimed.

The Attorney General then went on to discuss American jurisprudence on informational privacy.

He started off with discussing the NASA vs. Nelson judgment, passed in 2011. This case allowed background checks on federal employees and held that there was no constitutional right to informational privacy.

The Attorney General read out several passages from the case.

“Our due process precedents, even our “substantive due process” precedents, do not support any right to informational privacy. First, we have held that the government’s act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” Paul v. Davis, 424 U. S. 693, 709 (1976). We reasoned that stigma, standing alone, does not “significantly alte[r]” a person’s legal status so as to “justif[y] the invocation of procedural safeguards.” Id., at 708-709. If outright defamation does not qualify, it is unimaginable that the mere disclosure of private information does.”

The Bench interjected at a few points.

Justice Chandrachud stated that the case in question referred to informational privacy and the scope of the 9 judge bench was limited to privacy as an entire concept. He also stated that in the American case, the government was the employer, which set a different standard than when a sovereign state is involved.

He went on to discuss other American cases like Roe vs. Wade where it was held that privacy was part of due process law. He also stated that American jurisprudence was not at the forefront of the debate on informational privacy. There are other jurisdictions that could prove more worthy in this discussion, like Luxembourg or Strasbourg.

The Attorney General stated that this case would have to be considered in the Indian context and that he would have to look into the aforementioned cases. He continued to read out other passages from the case:

“ Second, respondents challenge the Government’s collection of their private information. But the Government’s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U. S. 833, 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U. S. 435 (1976), and that the Fourth Amendment does not prohibit the Government from asking questions about private information. 530 F. 3d 865, 876-877 (2008). That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other constitutional provisions.”

Justice Nariman brought up the point that United States vs. Miller had been criticized heavily, also in Indian judgments. The effect of it was that it undid the Katz judgment and pushed the jurisprudence back to 1928 while shifting the 4th amendment jurisprudence. He did not see the merit of relying on this case.

The Attorney General then stressed on the point that informational privacy was explicitly omitted in this judgment. He stated that the deliberate omission raised serious doubts.

He stated that the relevance of the case was that it did not allow informational privacy to be elevated, which ties in with his submissions.

Justice Chandrachud went on to discuss the 3 positions on informational privacy.

First, is Justice Scalia’s position. Which is that informational privacy can never be a constitutional right. Second is the position that all informational data is constitutionally protected under the rubric of privacy. And third is the position that some data can be protected but not all data can be saved under privacy.

He then went on to discuss the need for a determining principle. He said that given that demographic information is available in the public and we are increasingly becoming public individuals, there is a need to identify what kinds of data attract privacy interests and what do not, this is where the principle is relevant.

On the matter of informational privacy, the Attorney General then stated that the state should have a blanket right to informational data. He then qualified that by saying that the bench would have to consider where the line would be drawn, stating the example of asking about extra marital affairs in an Aadhaar form.

On the matter of this restriction, Chandrachud asked whether this blanket right of the state would come into play as a legitimate or a compelling interest and what the threshold would be. A legitimate interest has a lower threshold than a compelling interest.

The Attorney General stated that a lower threshold would be more appropriate.

Justice Chandrachud then asked that if there was a compelling state interest, should there be rules for how the state maintains collected data.

Referring to election rules about asset disclosure and criminal charges, the attorney General stated that this form of disclosure would be in the interest of the public.

On the point of compelling state interest, Justice Chelameshwar stated that what can be determined is to what extent the right can be curtailed, not what the right is.

He also stated that the context of the NASA case was different and wouldn’t be relevant for this case.

The Attorney General then went on to read the contents of an Indian Census form. He said it was elaborate and ‘stood the test of time’. He also stated that the obligation to hand over this data could not be undone because public interest prevailed. According to the Attorney General, once a matter is a public record, it becomes a legitimate subject and there can be no claim to a right to privacy.

He then went on to list out recent developments of linking Aadhaar with different schemes.

At this juncture, Justice Chelameshwar referred to Section 11 (1) (b) of The Census Act, 1948 and how the Act had provisions to protect data.

The relevant parts of Section 11(1)(b) reads as follows:

‘any census officer who…discloses any information which he has received by means of, or for the purposes of, a census return…shall be punishable’

In response to which, the Attorney General stated that Section 29 of the Aadhaar Act was more stringent.

The Aadhaar Act was then discussed. Justice Chandrachud raised the question of interpreting ‘demographic information’ under Section 2(k) of the Act. He then went on to discuss whether mobile phone numbers would be protected under the Aadhaar Act.

He then went on to discuss how 800 million phone numbers could possibly be a commercially viable asset and sold to private organizations. The state would need to ensure that there were laws protecting such data.

Justice Chandrachud then stated that the 3 judge bench would have to consider whether there should be a robust protection mechanism.

The Attorney General stated that such information would not be shared and would be protected under the Aadhaar Act.

At this point, Additional Solicitor General Tushar Mehta brought attention to certain provisions of the Aadhaar Act and the Aadhaar Enrolment Regulations. He stated that Section 8(2)(b) and Section 29(2) of the Act, read along with Rule 4 of the Aadhaar Enrolment Regulations would ensure that information was protected.

Justice Nariman stated that these provisions of the Aadhaar Act, and the entire chapter referred to did seem to identify privacy interests. He then asked the respondents if, by relying on these provisions, they were also recognizing privacy interests. Justice Bobde asked if the respondents were identifying privacy as a fundamental right.

To this the respondents stated that there is no fundamental right to privacy, by virtue of which privacy interests had to be specifically identified in the Aadhaar Act.

The Attorney General discussed the case of PUCL vs. Union of India. This case relied on Justice Frankfurters opinion of ‘ordered liberty’ in Wolf vs. Colorado, (1949) 338 US 25.

He then went on to discuss the American case, Greater Cleveland Welfare Rights Organization vs. Samuel Bauer, 462 F. Supp. 1313 (1978). This judgment upheld the validity of Social Security Numbers in the United States and held that citizen’s privacy would not be violated.

He then went on to read out the contents of a Social Security enrolment form and compared it to an Aadhaar enrolment form. He remarked upon the content of the Social Security enrolment form, stating that new fields were added frequently, ever since the system was launched. He also stated that there aren’t too many instances in the United States where a Social Security Number is not required, including that of a death certificate.

The Attorney General stated once again that the founding fathers did not intend to include privacy as a fundamental right and that it was deliberately omitted.

In conclusion, the Attorney General stated that liberty is a multitude set of rights and even if privacy is a right, it could not be elevated to the status of the fundamental right to privacy.

 

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.