CCG’s Week in Review [June 17-24]: Curated News in Information Law and Policy

From the Aadhaar Amendment Bill introduced in parliament today to US’ cyberattacks against Iranian military installations and India’s soon-to-be-formulated cybersecurity strategy — presenting this week’s most important developments in law and tech.

Data Protection

  • [June 18] Government stands firm on e-commerce, data security, Times of India report.
  • [June 18] Government executives, tech companies lock horns over data protection, draft ecommerce policies, Inc42 report.
  • [June 18] Karnataka to announce new IT policy with focus on Tier-II cities, Medianama report.
  • [June 19] Data Protection Bill to reach Parliament soon; rules may remain stringent, Business Standard report.
  • [June 20] Adtech industry ignores data protection laws, UK regulator rules, Forbes magazine report.
  • [June 20] Data skills in demand as data becomes the new oil, Business Today report.
  • [June 21] India is set to become a data powerhouse, confirms Piyush Goyal, Entrepreneur India report.  

E-Commerce Policy and Digital Payments

  • [June 18] RBI to examine concerns over data localisation rule: Government, Money Control report; The Wire report.
  • [June 19] India to counter US protectionism with e-commerce, data security bills, Hindustan Times report.
  • [June 18] Commerce Ministry: MeitY, RBI to realise full use of digitisation in trade: Piyush Goyal, United News India report.
  • [June 19] Piyush Goyal meets retailers and Kirana stores representatives to discuss e-commerce policy, Business Today report.
  • [June 20] Digital payments zoom past FY 19 target driven by private lenders, Economic times report.
  • [June 20] A more robust Digital India 2.0 to be unveiled soon, DNA India report.
  • [June 24] Data Protection and Aadhaar Amendment Bills listed for budget session, Economic Times report.
  • [June 24] RBI increases focus on cybersecurity as India’s digital payment craze peaks, Analytics India magazine report, Analytics India magazine report.


  • [June 21] GST Council approves Aadhaar card for GSTN registration , Deccan Chronicle report.
  • [June 22] Aadhaar is very well protected, says cybersecurity chief Rajesh Pant, NDTV report; Business Standard report
  • [June 23] India’s Aadhaar technology a big hit with other nations? Here’s more: India could soon start exporting e-governance software products like Aadhaar to at least 20 Asian and African countries, Qrius report
  • [June 23] Aadhaar ousts 5.53 lakh fake ration beneficiaries in Mumbai and Thane, Indian Express report.
  • [June 24] IT Minister RS Prasad introduces Aadhaar amendment bill in Parliament, “Aadhaar does not violate privacy, is in national interest” Medianama report.

Blockchain and Crypto

  • [June 17] Europol looks to strengthen crypto and blockchain knowledge, CNN report.
  • [June 18] Facebook announces Calibra cryptocurrency wallet, wants to create universal currency with Libra, India Today report; Quartz report; Medianama’s all-you-need-to-know summary.
  • [June 20] Libra could be unbalanced by India’s crypto laws, Coin Desk report.
  • [June 21] The Week in tech: Facebook’s Crypto Dream Faces deep Mistrust, New York Times report
  • [June 22] Global money laundering watchdog has crypto in its sights, Al Jazeera report.
  • [June 24] Inc42 report on Cryptocurrencvy this week: Facebook’s Libra, Russia to adopt crypto regulations, FATF recommendations and more.  

Free Speech / Tech and Law Enforcement

  • [June 18] Why post on Pulwama intelligence failure blocked on twitter, Digvijaya Singh fumes, India Today report.
  • [June 18] India asks WhatsApp to fingerprint messages to ensure traceability, The Economic Times report; Medianama report.
  • [June 18] India bullies Twitter into banning accounts of American, British students thousands of miles away, The Daily Beast report.
  • [June 19] India forces Twitter to suspend open source intelligence handles, The Week report.
  • [June 20] Rapper Hard Kaur charged with sedition for post against Adityanath, Bhagwat, The Wire report.
  • [June 21] No, India did not bully Twitter into banning OSINT accounts, India Today report.

Internet Shutdowns

  • [June 21] Internet suspended in parts of West Bengal’s North 24 parganas district, Medianama report.
  • [June 23] Myanmar blocks internet as violence escalates in Rakhine state, The National report.

Big Tech

  • [June 20] Big tech fears US regulation, but it may be Ireland that should scare them, CNBC report.
  • [June 23] Apple or Android? What is the NDA Cabinet using? Spoiler: Amit Shah prefers iPhone XS, The Economic Times report.

Emerging Tech/ Aritificial Intelligence (AI)

  • [June 19] Microsoft launches AI Digital labs in India, aims to train 1.5 lakh students , Medianama report.
  • [June 24] Hybrid cloud technology is safe but the security it offers isn’t absolute, Financial Express report,

Telecom/ 5G

  • [June 20] Why 5G is the next headache for some of India’s richest men, ET Telecom report.
  • [June 20] 5G will power IOT networks, it will also make cyberattacks easier- are telcos listening? ET Prime report.
  • [June 21] DoT to roll out centralised database of all IMEI numbers “in the coming weeks”: Indian Express report; Medianama report.

More on Huawei

  • [June 19] Qualcomm and Intel are quietly lobbying against Trump’s Huawei ban, Android Central report.
  • [June 19] Don’t share our goods with Huawei: US to Indian companies in letter to MEA, The Economic Times report.
  • [June 19] US ban on Huawei presents Nokia and Ericsson with a huge opportunity, Business Standard report.
  • [June 20] Huawei technology exposes millions of peoples’ calls to surveillance, US warns, Forbes report.
  • [June 20] DoT alone will not take call on Huawei, says telecom secretary Aruna Sundarajan, Live Mint report.
  • [June 20] China asks India to make an independent judgment on Huawei, New Indian Express report.
  • [June 22] Huawei reportedly sued US Commerce department over seized equipment, ramping up trade war tensions, the Business insider report.
  • [June 23] Huawei urges India to take ‘informed’ decision on let5tting it join 5G trial, Business Standard report.


  • [June 17] Millions of Venmo transactions scraped in warning over privacy settings, Tech Crunch report.
  • [June 18] ‘Shot on OnePlus’ app leaked users’ email addresses and other personal data for years, NDTV report; Medianama report.
  • [June 19] US Senate bill to strengthen cybersecurity coordination with state and local governments, Federal News Network report.
  • [June 20] Data protection startup Driva’s valuation crosses $1 billion, joins unicorn club, Business Standard report.
  • [June 21] India, France to deepen cooperation in the cybersecurity sector, All India Radio report.
  • [June 22] India’s Cybersecurity Strategy Policy in 2020, says National Cybersecurity Coordinator Rajesh Pant, Medianma report.
  • [June 22] US blacklists 5 Chinese groups working in supercomputing, National Herald report.


  • [June 15] US escalates attacks on Russia’s power grid, The New York Times report.
  • [June 17]Experts propose feds use sanctions and cyberweapons to fight deepfakes, Defense One report.
  • [June 21] Trump made the right call by not pulling the trigger on Iran after it shot down a US drone, former officials say, Business Insider report.
  • [June 22] Iranian hackers wage cyber campaign amid ongoing tensions with the US, Time Magazine report.
  • [June 23] Trump approved cyberattacks on Iran after drone downing, Al Jazeera report.
  • [June 23] US carried out cyberattacks on Iran, New York Times report; The Wall Street Journal report; The Hindu report.

Tech and Military

  • [June 17] Sniper rifles for India Army delayed as 20 firms offer weapon, but none make ammunition, Defense Aviation Post report.
  • [June 18] Paris Air Show: Dassault, Airbus unveil stealth jet to replace Rafale, The Week report.
  • [June 18] Defence University to Defence Chief – Modi Government now has political capital for the big reforms, The Print report.
  • [June 18] US voices interoperability concerns about Indian S-400 procurement, Jane’s Defence Weekly report.
  • [June 19] India-US military trade: Partnership between the two nations on an upwards trend, the Financial Express report.
  • [June 19] Great power competition ushers in a new generation of european weapons, Defense One report.
  • [June 20] Make aero engines in India for self-reliance: Defence experts, Outlook India report.
  • [June 21] Navy issues EoI for shortlisting Strategic Partners for building six submarines worth Rs. 45,000 crore, Economic Times report; Business standard report.
  • [June 21] Two Bengaluru startups first to get CGCA certification for drones Medianama report.
  • [June 22] One more UPA era defence deal under scanner: CBI searches Sanjay Bhandari’s house, The Deccan herald report ; The Hindu report.
  • [June 22] US and India to soon sign industrial security annex which will allow transfer of advanced defence technology, Swarajya magazine report.
  • [June 24] India lining up defence deals worth $10 billion with US amid trade row, Times of India report.
  • [June 23] Defence forces hope FM will leave enough funds for modernisation in Budget, The Economic Times report.
  • [June 24] India scraps $500 million arms deal with Israel after DRDO promises Make in India, Indian Express report, International Business times report.
  • [June 22] Own space station is crucial to India, says ISRO chairman K. Sivan, Business Standard report.

Opinions and Analyses

  • [June 17] GDPR: Looking to the year ahead, Cooley LLP analysis.
  • [June 18] Amit Cowshish, Analysis for the IDSA/ Indian Defence Review, Design and Development of equipment by DRDO, DPSUs and Ordnance Factories.
  • [June 18] China Cybersecurity and Data Protection monthly update by Herbert Smith Freehills on Lexology.
  • [June 18] Medianama summary: Copyright Amendment Rules 2019: statutory licensing for internet broadcasting firms, stricter code of conduct for copyright societies, etc.
  • [June 18] Michael Schmitt’s analysis for Just Security (blog), ‘US Cyber Command, Russia and Critical Infrastructure: What Norms and Laws Apply?’.
  • [June 18] Robert Chesney’s analysis for Lawfare (blog), US Cyber Command and the Russian Grid: Proportional Countermeasures, Statutory Authorities and Presidential Notification.
  • [June 19] Matthew de Silva, Quartz, The problem with Facebook calling its crypto “Libra”,
  • [June 19] Is tech too intertwined for Huawei to fall? Fortune analysis.
  • [June 19] 2001-2019: Huawei’s long history of being considered a national security threat, Medianama summary.
  • [June 20] Ishan Mehta, Wired, under Trump, the fight against cybercrime has waned.
  • [June 20] Aayush Mohanty, The Economic Times blog, India’s security interests vis-a-vis the US’ Hobson’s choice.
  • [June 20] Mei Bowen, Economic Times Telecom, 5G puts the spotlight on network security.
  • [June 23] Manish Tewari, The Asian Age, The case for regulating social media in India.
  • [June 21] Martin Giles, MIT Tech Review, Five Reasons why “hacking back” is a recipe for cybersecurity chaos.
  • [June 23] Zack Doffman, Forbes magazine, US attacks Iran with cyber not missiles—a game changer, not backtrack.

SC Constitution Bench on Aadhaar- Final Hearing (Day XXXV)

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

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Advocate Zoheb Hossain continued his submissions for the State of Maharashtra and the UIDAI. He began with referring to various international charters and covenants, stressing on the importance of harmonizing between the economic and social rights and the civil and political rights.

Justice Chandrachud noted that the Directive Principles, even though they are non justiciable, are necessary for good governance and as a guarantee of reasonableness of the law. This is why they are read into Article 21.

The counsel argued that all rights give rise to corresponding duties, and that Aadhaar was a project to secure the economic and social rights of the people. He then brought the Court’s attention to the Justice Wadhwa Committee Report on the Public Distribution System. He then brought the Court’s attention to various precedents. He referred to the case of DK Trivedi, where the Court had held that ensuring socio economic welfare was a constitutional obligation of the State. Further, it had been held that a statute could not be judged on the presumption that the executive power that it confers would be abused, or used arbitrarily.

The counsel then referred to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and resolutions of the UN General Assembly. He reiterated that rights were indivisible and interconnected, and that socio economic rights were equal to the civil and political rights.

The counsel then argued that the proportionality and reasonableness of a restriction must be examined from the point of view of the general public, and not that of a specific party that claims to be affected. He argued that even if Aadhaar is used for different purposes such obtaining a SIM card or opening a bank account, the data remains disaggregated. He stated that as a consequence, there was no possibility of surveillance, even at the level of the Requesting Entities.

The counsel then drew a comparison between Aadhaar and the Social Security Number in the United States. He noted that the SSN was used for a variety of purposes, and that people could be denied benefits for not producing their SSN. He argued that the Courts in the US had upheld the firing of an employee for refusing to provide his SSN. The counsel then argued that the Aadhaar Act had sufficient safeguards in place over the identity and authentication information. He referred to Section 33 of the Act, noting that decisions made under that Section were subject to review by an oversight committee. He concluded that the safeguards in place were greater than what are provided by the Telegraph Act, and the standards laid down by the Supreme Court in the PUCL case.

Post lunch, the counsel resumed his submissions for the Respondents with examining how various search and seizure related provisions under the IT Act and CrPC had passed constitutional muster. He then proceeded to the issue of ‘national security.’ He argued that in times of emergency, a strict adherence to the principles of natural justice is not necessary. He referred to a House of Lords decision that read in a national security exception to a statute even though the text did not provide  for it.

He then addressed the contention with respect to Section 47 of the Aadhaar Act, arguing that it provided for sufficient remedy since a complaint could be filed to the UIDAI. He argued that Aadhaar had many technical aspects, so it would be best if only the Authority has the power to complain. He noted that a similar setup in the Industrial Disputes Act had been previously upheld. In addition, he noted that the UIDAI could authorize a person to make a complaint as well.

The counsel then submitted that the Aadhaar Act had sufficient safeguards for the CIDR, while provisions under the IT Act would cover actors outside the CIDR.

The counsel then framed the purpose of Section 139AA of the Income Tax as a measure to ensure redistributive justice, to ensure substantive equality. He argued that ‘distribute’ in the Directive Principles had been interpreted liberally, and measures to prevent leakages would thus be considered redistributive.

The counsel then moved to the addressing the argument about compelled speech. He argued that not all transactions can be considered to have a speech element, for instance linking the Aadhaar to PAN. He further noted that the Court in Puttaswamy had held that rights could be curbed to prevent tax evasion and money laundering. He added that the Income Tax Act and the Aadhaar Act were standalone Acts, and that after Binoy Viswam, it was settled that they were not in conflict. He responded to the contention that only individual tax payers had been mandated for linkage, stating that a measure need not strike at all evils at once. He argued that the linkage could help cure ills with companies as well, by revealing the people behind them. The linkage can allow the deduplication of DINs. Advocate Zoheb Hossain then concluded his arguments.

The Attorney General then began his arguments, by addressing the Money Bill issue. He argued the Act was, in pith and substance, a Money Bill. ‘Targetted Delivery of Subsidies entails the expenditure of funds. He argued that every act would have ancillary provisions dealing with review, appeal etc., but the primary purpose deal with the Consolidated Fund of India.

Justice Chandrachud questioned the counsel about whether Section 57 of the Act severed that link. The AG responded that the Section merely allowed the existing infrastructure to be used for other purposes, and was just an ancillary provision. The UIDAI had been brought into existence primarily to prevent leakages and losses.

Justice Sikri noted that there was no distribution of benefits or subsidies under Section 57. The AG argued that the Section would be saved by Article 110(1)(g) of the Constitution, and stressing on an interpretation of the word ‘only’ in the Article. Justice Chandrachud suggested that that might amount to rewriting the Constitution.

The Attorney General will resume his arguments on May 3, 2018.


SC Constitution Bench on Aadhaar- Final Hearing (Day XXXII)

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

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.

Senior Counsel Rakesh Dwivedi resumed his arguments for the Respondents. He began with referring to jurisprudence from the United States, the United Kingdom, South Africa and the European Union, to describe how privacy should be constructed in the Indian context. He argued that Indian jurisprudence is more in line with that of the United States, than the European Union. He stated that that former lays greater emphasis on the ‘reasonable expectation to privacy’. He then quoted a Harvard Law Review article, for the proposition that privacy should be tempered by considerations such as national security, efficiency, and entrepreneurship. He argued that that was especially true in the Indian context, where innovation and development should have more emphasis than privacy.

The counsel made reference to Justice Chandrachud’s opinion in Puttaswamy, and argued that social welfare could be a legitimate purpose for processing of data. Coming back to the construction of privacy, he argued that all Aadhaar data was in the public, relational sphere. He submitted that privacy is diluted in these realms, so there is a reduced expectation of privacy over data such as demographic data, and facial photographs. He reiterated that data with the Requesting Entities was dispersed, and therefore didn’t require the same level of protection as the CIDR.

Justice Chandrachud sought a clarification, if the submission was that core biometrics had a higher privacy interest, as opposed to demographic data, such as one’s address. He countered that the implication was not that the privacy interest in such data was gone. He gave the example of a woman and her address. He argued that she might give her address out for various purposes, but still had immense privacy interest in that information. The counsel responded that their argument was simply that privacy varies according to context.

The counsel argued that India had developed the appropriate tests in VG Row, much before any other jurisdiction. He reiterated the three-fold requirement of legality, necessity and proportionality. He noted that Indian jurisprudence generally did not adopt the due process standard. The counsel then addressed some of the cases that had been cited by the Petitioners, and attempted to distinguish them on facts.

Post lunch, the counsel resumed his submissions, with the issue of metadata collection. He attempted to distinguish the present case from Digital Rights Ireland, which had been cited by the Petitioners. The counsel argued that there were different types of metadata, and the data in question in those cases had been much more intrusive than what is collected by the Aadhaar authentication. He reiterated that the test is that of ‘appropriate safeguards’. He cited the case of Sundar Rajan v State of Tamil Nadu, which dealt with the Kundankulan nuclear power plant. He argued that the court had examined whether adequate safeguards had been in place, and had given due weight to economic benefits such as the increase in welfare, poverty alleviation etc. He argued that the Court in Sundar Rajan had held that apprehensions and fears could not be allowed to override the justification of the project. The counsel reiterated that the standard would be of ensuring adequate safeguards, and the risk would never be zero.

The counsel argued that the Aadhaar Act imposes a complete bar on sharing of the data, factors in consent, and the data with Requesting Entities was in any case disbursed and decentralized. He argued that the Petitioners had not suggested any way of improving the system, and only wanted it dismantled.

Justice Chandrachud asked what remedy was present in case of breaches. The counsel responded that the Information Technology Act would be applicable, which had penal provisions. Further, the route of contractual damages could be taken.

The counsel then described the EU Data Protection Directive, arguing that the purpose of the Directive was very different, with the aim being to ensure free flow of data. He argued that in contrast, Aadhaar didn’t allow any sharing of data. He argued that as a result, the absence of a regulation such as the Directive, or the General Data Protection Regulation would have no bearing on the matter at hand. He reiterated that the protections in the Aadhaar Act were sufficient, and even higher than those provided by the EU instruments. The counsel then went over the various provisions of the Directive and Regulation that govern the processing of sensitive information.

The counsel then resumed his submission with respect to metadata, as a response to the surveillance concerns raised by the Petitioners. He argued that the Petitioners had not appreciated the distinction between different types of metadata, such as system metadata, process metadata, business metadata etc. He argued that each had to be examined separately. He submitted that Aadhaar authentication only collected limited technical metadata.

The Chief Justice asked why the data had to be retained, and what sort of data was actually retained. The counsel drew the Court’s attention to an affidavit he had submitted, as well as the relevant circular which prescribes the metadata that is collected. He argued that it was all system related metadata, which allowed the UIDAI to exercise control over the Requesting Entities. He argued that information such as location data, the purpose for authentication, was not collected in the process.

The hearing will continue on April 25, 2018.


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

Yesterday, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing yesterday’s hearings can be found here. Today, the hearing concluded with arguments advanced on behalf of the states of Rajasthan and Haryana along with the Centre for Civil Society and the TRAI and with a rejoinder from the petitioners. Today’s hearings have been divided into two posts, the first post can be found here.

Counsel Gopal Shankarnarayan appeared for the Centre for Civil Society.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next, Senior Counsel Kapil Sibal commenced his arguments.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The hearing has concluded and the judgment is reserved.


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

Yesterday, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing yesterday’s hearings can be found here. Today, the hearing concluded with arguments advanced on behalf of the states of Rajasthan and Haryana along with the Centre for Civil Society and the TRAI and with a rejoinder from the petitioners.

The hearing started off with Senior Counsel Rakesh Dwivedi, appearing for the state of Rajasthan, continuing his arguments.

Mr. Dwivedi stated that privacy as a right had to be located specifically. He stated that if privacy was integral to a certain fundamental right, for instance, Article 19(1)(a), it would become part of that right and there would be no need to elevate it to the status of fundamental right itself. In this instance, it could also be tested under the restrictions listed under Article 19(2).

In response, Justice Nariman discussed the American case of Stanley vs. Georgia. This case dealt with obscene material found at the accused’s residence. Even though the freedom of expression in the United States did not cover obscene material, the United States Supreme Court held that the possession was not illegal as it was in their home, which rendered it private.

Mr. Dwivedi stated that privacy as a right would have to be under one fundamental right.

Justice Chandrachud stated that his test could constrict the arms of the state. For instance, if one were to take behavioral privacy and say that it is only covered under Article 21, then it would have to meet only one test. Mr. Dwivedi reiterated that privacy should only be covered under one right, and that would have to be Article 21.

Justice Nariman stated that the problem with this contention was that it would bring them back to the majority opinion laid down in Kharak Singh.

Mr. Dwivedi reiterated his point.

Chief Justice Khehar stated that these contentions had far-reaching consequences. For instance, if privacy was only protected under Article 21, then the only safeguard would be procedure. If privacy was only covered under Article 19, then the safeguards would be reasonableness, etc.

Mr. Dwivedi stated that Maneka Gandhi vs. Union of India would ensure that actions under Article 21 would also have to be ‘just, fair and reasonable’.

Justice Chandrachud stated that privacy could be found as a right under other fundamental rights as well, such as Article 25. In response to this, Mr. Dwivedi stated that while the ‘planets’ may interact, they still have their own ‘orbits’, and would have to be reconciled.

Mr. Dwivedi then went on to discuss the legitimate expectation test laid down in the case Kyllo vs. United States. This case dealt with the marijuana found on private premises, which was detected by thermal imaging and whether the evidence found would be permissible. Mr. Dwivedi read out a paragraph from the case which discussed the Katz test.

While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacythere is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by senseenhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U. S., at 512, constitutes a searchat least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.

 Justice Nariman disagreed with Mr. Dwivedi and asked him to read out a portion of the case Minnesota vs. Carter.

In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz) is that, unsurprisingly, those “actual (subjective) expectation[s] of privacy” “that society is prepared to recognize as ‘reasonable,'”, bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a “search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that “search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this Court to determine which particular manifestations of the value of privacy “society is prepared to recognize as ‘reasonable.'”. Rather, it enumerated (“persons, houses, papers, and effects”) the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.

 Justice Nariman then stated that similarly, there would be no ‘plausible foundation’ in Article 21 either.

Mr. Dwivedi stated once again that the Katz test would be the best one to apply.

At this point, Justice Chandrachud asked whether there was a possibility of different zones of privacy existing. He then laid down the different zones of privacy:

1) Intimate zone – this would concern marriage and sexuality, amongst others. In this zone, state intervention would have to be of a minimal amount, and the law would frown upon any invasion other than that involving a compelling state interest.

2) Private zone – this would involve instances of privacy, shared with others. For instance, money transactions. In this zone, the purposive test would have to be applied and information shared could only be used for the purpose enumerated.

3) Public zone – in this zone, privacy of the mind and the body would still be expected. But otherwise, privacy would have to be modulated from the previous zones.

Justice Chandrachud stated that privacy would be gradual from the intimate to the public zone and would have to be modulated accordingly.

Mr. Dwivedi stated that according to his understanding, the notion of privacy was in contrast to the notion of the public.

Justice Chandrachud stated that what India had to offer as a global powerhouse, was its population. He stated that the demands of the 1.4 billion people in country, was sustaining its power. He also stated that in the context of privacy, we would have to ensure that innovation was not stifled and that a knowledge based economy could thrive.

Mr. Dwivedi then stated that privacy could generally not be considered as a right, but certain concerns could be.

Justice Chandrachud stated that even in the extreme public realms, the core of privacy would still have to be maintained.

Mr. Dwivedi stated that the modulation of privacy from one zone would have to be diluted, and that beyond the intimate zone, privacy would not apply as strongly. He reiterated the point that privacy concerns would have to be determined on a case by case basis.

Justice Nariman then stated that there would be different tests in each privacy zone and they would have to be balanced against state interest, and that privacy would exist in each zone.

Mr. Dwivedi stated that this would be circumstantial. He stated that there could be sensitive information collected, without harm and injury. Citing the example of medical data, he stated that such data could be collected from the ‘sensitive’ zone, without identifiers, and this would not attract Article 21.

Mr. Dwivedi then read a paragraph from Govind vs. State of Madhya Pradesh, which relied on Griswold vs. Connecticut.

There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that acclaimed right is entitled to protection as a fundamental privacy right ,a law infringing it must satisfy the compelling state interest test. Then the question would be whether a state interest is of    such paramount importance as would justify an infringement of the right. Obviously, if the enforcement of morality were held to be a compelling as well as a permissible state interest, the characterization of a claimed rights as a fundamental privacy right would be of far less significance. The question whether enforcement of morality is a interest- sufficient to justify the infringement of a fundamental right need not be considered for the purpose of this       case and therefore we refuse to enter the controversial thicket whether enforcement of morality is a function of state.

Mr. Dwivedi discussed a few other cases dealing with ‘reasonable expectation’, including Smith vs. Maryland. He also discussed reasonable expectation under Article 8 of the ECHR.

Mr. Dwivedi then stated liberty in the preamble was in a narrow domain. He also stated that dignity was to be construed in the context of fraternity.

He then went on to discuss due process under the law, stating that this term would create great problems. He relied on the McDowell case to support his argument. Justice Nariman then stated that McDowell was a doubtful judgment. He went on to state that due process has been upheld as the ‘just, fair and reasonable’ standard in Maneka Gandhi’s judgment.

Mr. Dwivedi stated that this would have to be read in context of V.G. Row and Chintaman Rao. He also stated that if the test was for ‘just, fair and reasonable’, then there would no need to read it as due process. Mr. Dwivedi also relied on the Sunil Batra case, stating that according to Justice Krishna Iyer’s opinions, there could be no due process law.

Justice Nariman went on to explain the difference between substantive and procedural due process. Mr. Dwivedi stated that a procedure that denies the court discretion is problematic. He then stated that the standard in McDowell had to be upheld.

Justice Nariman stated that McDowell had to be seen through the V.K. Jain judgment.

Mr. Dwivedi reiterated that due process has been rejected previously and that the same must be adhered to.

He then went on to discuss identification information and the protection of privacy. He states that basic identification information cannot be protected by a right to privacy, citing the example of the Supreme Court rules and the details of the Judges published on the website. Referring to the Order 38, Rule 12(2) he asked if a right to privacy could be claimed in this regard.

Mr. Dwivedi then stated that only those who had something to ‘hide’ would claim the right to privacy. Justice Chelameshwar disagreed.

On the point of information of lawyers and judges, Justice Chandrachud stated that the problem would arise if the Supreme Court were to provide that database to other legal service providers.

Mr. Dwivedi stated that there were major private corporations that had personal data, and remarked on how companies like Google should be controlled in this regard. Justice Chandrachud stated just because privacy as a practical notion was breaking down, that could not justify the disregard of privacy as a constitutional notion.

Mr. Dwivedi stated that basic information was now handed over to several bodies and stated that this would essentially render it in the public zone.

Justice Nariman stated that these bodies would still have to ensure that the information were used for specific purposes.  Mr. Dwivedi states that there have to be other ‘over-arching principles’ that have to be considered, and not just purposive limitation.

With this point, he concluded his arguments.


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The hearing will continue tomorrow (2/8).


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).