Guest Post: Puttaswamy and privacy rights of the accused

This post is authored by Thulasi K. Raj

Following the judgment of the Supreme Court in Puttaswamy, the privacy rights of accused persons have been litigated upon across various High Courts in India. The right to privacy is especially relevant at various stages of a criminal case where numerous situations can potentially infringe the accused’s privacy. In this post, I will examine how privacy claims made by the accused have been examined by courts post-Puttaswamy. I specifically examine two types of claims: (i) cases where the personal information of the accused is available (or has been made available) in the public domain; and (ii) cases concerning the procedures an accused may be subjected to.

In cases where the accused has raised a privacy claim, the State typically makes a ‘countervailing interest’ argument; that a key governmental interest such as effectively investigating crimes is furthered by interfering with an individual’s privacy, and hence is justified. However, Puttaswamy, laid down that State infringements on privacy cannot merely serve an important interest, but must fulfil the four-part test of legality, necessity, proportionality, and reasonable safeguards. The Supreme Court held that “An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” The proportionality limb also specifically requires the State’s measure to be the least rights infringing measure possible that continues to fulfil the State’s desired objective, with courts balancing competing interests. Justice Kaul’s separate opinion would add a fourth limb to this test, ‘procedural safeguards against abuse of interference with rights’, in line with Article 21’s guarantee of a ‘procedure established by law’.

The first set of privacy claims is where the personal information of accused persons were made public due to them being the subject of a criminal prosecution and judicial interventions were sought to safeguard this data. One of the prominent cases in this regard was Re: Banners before the Allahabad High Court. The district administration and police had put up banners displaying the names and photographs of persons who were accused of vandalism.

Expressly referring to Puttaswamy’s, and applying thefour-tier test, the High Court in Re: Banners first held that there were no statutory provisions “permitting the State to place the banners with personal data of the accused” in public (contravening the ‘legality’ test). Further, the publication of personal data also failed the ‘legitimate aim’ and ‘proportionality’ requirements. The purported aim, as argued by the State, was to deter people from violating the law. According to the Court, this was insufficient as the action of publishing personal information on banners was not necessary to achieve this aim. Therefore, the banners were ordered to be removed and the administration was asked to refrain from such actions in the future without legal authority.

In Karthick Theodre, an individual who had been acquitted of criminal charges by a 2014 judgement sought the “erasure or redaction of his personal information from the public domain.” In other words, the petitioner sought the redaction or erasure of his name from the judgement. Relying on Puttaswamy, various arguments including the right to be forgotten were raised before the Madras High Court. The apprehension of the petitioner was duly noted, that whenever his name was searched through search engines, results relating to the judgment would appear. However, the Court dismissed the plea on the grounds that without an adequate data protection law, laying down the parameters of when the redaction of the names of the accused should be directed, there was no objective criteria based on which the court can pass orders. While certain High Courts have granted reliefs based on the right to be forgotten, (See Jorawar Singh Mundy, Zulfiqar Ahman Khan,) the Madras High Court held that absence of a statute renders the petitioner remediless.

The second set of cases are privacy claims by accused persons as to the procedures they can be subjected to during an investigation. In Mursaleen Mohammad, the appellant was convicted under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”). The appellant was subject to an x-ray examination by the authorities and subsequently confined till he defecated to recover the contraband allegedly stored in his body. The Calcutta High Court observed that the search and recovery of contraband from a person contemplated under section 50 of the NDPS Act does not allow for invasive medical procedures absent compliance with strict statutory safeguards. The Court noted that there were procedural irregularities in collecting the ‘evidence’. By relying on Puttaswamy, the Court affirmatively held that ‘recovery of contraband inside the body of a suspect must not only be in accordance with the procedure established by law but also be compatible to (sic) the dignity of the individual and ought not subject him to cruel, inhuman treatment.” The recovery of contraband, according to the Court, encroached on the appellant’s right to privacy.

In Vinod Mittal, the Himachal Pradesh High Court considered the legality of an order by a Special Judge, directing the petitioner to undergo a polygraph test and provide a voice sample to the investigating agency. The petitioner challenged the constitutionality of these directions, relying on Article 20(3) of the Constitution and the decisions in Ritesh Sinha and Selvi. The petitioner, however, admitted that he was willing to provide the sample if the court found such procedures to be legally permissible. The High Court said that the tests the accused could be subjected to could broadly be divided into three kinds: “(i) permissible with or without consent, (ii) permissible with consent only, and (iii), impermissible altogether.” After studying relevant judgments, the Court held that polygraph tests fall under the second category.

The Court concluded that “It is not legally impermissible [for a court] to issue direction[s] to a person to undergo Narco Analysis, polygraph and BEAP test, but such direction shall be subject to consent of said person and the person has a right to elect to consent or refuse to undergo such test…” The Himachal Pradesh High Court, therefore, indicated through this case that such techniques, if done in an involuntary manner, would be an unjustified intrusion and violate an individual’s (mental) privacy.

These cases demonstrate that the four-tier test laid down in Puttaswamy has been significantly engaged with by constitutional courts in interpreting the right to privacy of the accused. The use of the conjunctive test laid down by the Supreme Court has facilitated a more robust scrutiny of State action vis-à-vis accused individuals. The interpretation certainly requires further development, with greater sophistication in enhancing the analysis under Puttaswamy. However, these are positive judicial observations that will likely result in a consistent and continuous engagement with violations of the right to privacy. While various aspects of the right to privacy, including the right to be forgotten, await comprehensive judicial recognition, privacy jurisprudence has tremendous potential to protect the rights of the accused in the years to come.

Guest Post: Liberty, privacy and abortion rights: Comparing India and the U.S.

This post is authored by Shrutanjaya Bhardwaj

On 25 June 2022, in Dobbs v. Jackson, the U.S. Supreme Court (“SCOTUS”) declared that the U.S. Constitution does not guarantee a right to abortion. SCOTUS thus overturned the celebrated 1973 judgment titled Roe v. Wade which had held the right to abortion to be constitutionally protected. This post analyses Roe and Dobbs, examining how and why they treated the term “liberty” differently. It then contrasts these definitions with the Indian understanding of “liberty”.

“Liberty” and “tradition”: A brief overview of Roe and Dobbs

The legal issue on which Roe and Dobbs disagree concerns the word “liberty” in the Fourteenth Amendment to the U.S. Constitution. The Amendment states that the State shall not “deprive any person of life, liberty, or property, without due process of law”. SCOTUS decisions prior to 1973 interpreted the word “liberty” narrowly . They held that the word does not include all kinds of liberties; it refers to those liberties which were historically and traditionally considered fundamental in the U.S. For example, Palko (1937) held that the Fourteenth Amendment only protects liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Similarly, Snyder (1934) held that the words “due process” imply the processes traditionally guaranteed in the U.S.

The Court in Roe (1973) was aware of these precedents. However, the majority ultimately held that the Fourteenth Amendment protects “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty’.” Conspicuously, the reference to history and tradition was omitted, presumably implying that history and tradition are not essential to the analysis. Hence, while narrating the history of abortion, the majority did not deem it necessary to locate a right to abortion in American tradition. It merely found that “at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect” (emphasis supplied). It then proceeded to hold that the right to abortion was protected under the Fourteenth Amendment as a facet of the right to privacy. Roe’s treatment of history and tradition would eventually become the main reason for its overturning in Dobbs.

But Roe was not alone in treating history and tradition as inconclusive. SCOTUS has generally wavered on this issue. E.g., in Obergefell (the 2015 decision affirming a right to same-sex marriages), SCOTUS held that while history and tradition “guide and discipline this inquiry”, they “do not set its outer boundaries”. Contrast this with Glucksberg (the 1997 decision rejecting a right to assisted suicide) which held that the “outlines” of the word “liberty” are to be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition,” indicating a conclusive reliance on tradition. Thus, the question of whether “liberty” is to be interpreted purely normatively (‘implicit to ordered liberty’), or must also be grounded in historical experience is  itself contested in SCOTUS jurisprudence and has changed over time – often based on the composition of the court on a given day and case.

In attacking Roe’s conclusion, then, the main objection taken by the Dobbs Court — composed of a 6-3 conservative majority — was a historical one. The majority re-examined historical evidence and found that abortion has been traditionally criminalised, or at least negatively treated, in most states: “By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history….” Citing Palko (1937) and Glucksberg (1997) for the necessity to ground liberty in historical practice, the majority rejected the idea that an abortion right was “deep-rooted” in American history and tradition. Thus, it found, the word “liberty” in the Fourteenth Amendment did not protect a woman’s right to medically terminate her pregnancy. 

The implication is this. After Dobbs, the 14th amendment itself does not include a right to medically terminate a pregnancy because the right is not “deeply rooted” in American history and tradition. Thus, there exists no need to examine whether there exists a countervailing right of the woman which must be “balanced” against the State’s interest in protecting prenatal life. As described by the dissent: “The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s….”

It is easy to see why SCOTUS’ reliance on history and tradition is problematic. The point of a Bill of Rights is to insulate freedom and equality from majority control. It is hence paradoxical that the meaning of liberty turns on popular tradition. Relying on  a male political majority’s treatment over a period of time of women (at a time when the latter were denied political representation – women were not allowed to vote when the 14th amendment was passed – and equal standing in society) to determine the liberties afforded to women today risks codifying past injustices into modern rights law. The Dobbs dissent rightly argues, quoting Obergefell, that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification.” This circular test—which sees the Constitution as a tool to cement tradition rather than challenge it—allows all kinds of regressive, liberty-restricting practices to be upheld so long as they are rooted in American history and tradition. Finally, history itself may be contested and heterogeneous, and the Court’s approach  provides few safeguards against the selective reliance and interpretation of “history” by the majority.

Yet, the dissent struggles—and so does an amicus brief —to articulate an alternative test to define “liberty”. The dissent argues, rightly, that history and tradition are not captured “in a single moment” and should be understood with reference to “the longsweep of our history and from successive judicial precedents”. But this does not take us very far. Is tradition relevant at all? How relevant? When can you overlook it? Is it possible to ensure that judges will not start interpreting the word “liberty” based on their own personal biases, in ways completely disconnected from American tradition? The dissent does not argue that tradition is irrelevant, and does not provide any principled test to determine when its relevance is reduced.

“Liberty” in the Indian Constitution

While the Indian Supreme Court often discusses the history of the issue before it (very common in reservation cases, e.g.), history and tradition have never been the determining factors to define “liberty” in Art.21 of the Indian Constitution. The meaning of “liberty” has been determined by other considerations.

Art.21 prohibits the State from depriving any person of “personal liberty” except as per procedure established by law. Separately, Art.19 lists six (originally seven) freedoms: speech, assembly, association, movement, residence and trade. In its early years, the Supreme Court was called upon to decide if the “liberty” contemplated by Art.21 was broad enough to include the six freedoms listed in Art.19. This question was first answered in Gopalan (1950). By a 5-1 majority, the Court held that since Art.21 spoke only of “personal” liberty—i.e., liberty of one’s person—it had to be interpreted narrowly to mean freedom from bodily restraint. As Das J. put it, liberty is the “antithesis of physical restraint or coercion”. The majority viewed Art.19 and Art.21 as distinct rights having no overlapping content. In other words, the content of “liberty” in Art. 21 was not informed by the rights enumerated in Art. 19

In the Gopalan era, therefore, Art.21 had a narrow scope. It did not, e.g., include the right to privacy, as held in M.P. Sharma (1954) and Kharak Singh (1964). But Gopalan was overturned after the Emergency. In Maneka (1978), the Supreme Court held that fundamental rights are not siloed; they are overlapping in terms of their content. Accordingly, the meaning of “personal liberty” in Art.21 was held to include and be informed by the six enumerated freedoms of Art.19 and other constitutional sources. 

Since Maneka, the meaning of “personal liberty” has been continuously expanded. Now, Art.21 includes, inter alia, the rights to legal aid and speedy trial, the right to shelter, workers’ right to health and medical aid, a woman’s right to make free choices regarding sterilization procedures, the right to privacy, and indeed, a qualified right to have an abortion subject to reasonable restrictions imposed by the Medical Termination of Pregnancy Act, 1971. 

But none of these activities or rights have had to pass a historical test before being recognised. The term “personal liberty” has been understood as being “of the widest amplitude” (Maneka 1978) and defined as “a power of acting according to the determinations of the will” (Mhetre 2011). These holdings imply that the words “personal liberty” encompass the freedom to do whatever one wants, although the freedom is not absolute and is subject to any fair, just and reasonable law made by the State (such as criminal legislations which identify and punish certain acts like murder, theft etc.) on legitimate grounds. In other words, the idea of “liberty” does not depend on the act being performed or its historical acceptance. In contrast with the SCOTUS, Indian courts have called the Constitution a “transformative” document, emphasizing its role as a revolutionary instrument that appropriately challenges tradition rather than protect it.

In one sense, this is a much neater test as compared to the one followed by SCOTUS. In context of abortion, because the interpretation of “liberty” does not presumptively exclude the right to terminate a pregnancy (Dobbs) it means that the Court must recognise two competing rights—the woman’s right to have an abortion and the fetal right (if it is shown to exist) to life—and resolve the conflict by evaluating the necessity and proportionality of the restrictions placed by the State. 

Conclusion

This is not to say that the test under Art.21 has no flaws. The flexibility of the “fair, just and reasonable” standard also means that it is vague, and a restriction deemed to be reasonable by one bench or court could well be deemed unreasonable by another. Yet, the advantage of the Maneka test is that it does not allow the Court to outrightly reject either competing right on the ground that it does not comport with historical practices and popular traditions. The Court must at least enter the balancing exercise and explain why particular restrictions on rights are proportionate or disproportionate.

“Liberty” under the Indian Constitution is substantially different from that under the U.S. Constitution. The SCOTUS test is problematic; tradition and history are not objective and using them to define “liberty” is not wise. In contrast, Art.21 protects all liberty, and is open to recognising competing rights within the constitutional scheme. A woman’s right to abortion is hence recognised, but is to be ‘balanced’ against the right to life of the fetus (if such a competing right is shown to exist). This allows for a much more principled inquiry into the competing interests and for testing the necessity and proportionality of the State measure in question.

The Dobbs ruling has serious implications for privacy rights. The immediate implications are on pregnancy and reproductive autonomy: 11 states in the U.S. already have laws criminalizing abortions, while 13 more states are speculated to pass such laws in the near future. The de-recognition of the right to abortion as a fundamental right also poses dangers of surveillance and sensitive data collection by law enforcement agencies by piggy-backing on the data stored with financial companies and even mentruation-tracking apps in an effort to track individuals who may have had an abortion in a state where it is illegal. Looking beyond pregnancy, the Dobbs decision might imply—as both the concurrence (by Justice Thomas) and the dissent suggest—a threat to other rights which were recognized by SCOTUS as flowing from the right to privacy, including the right to contraception, the right to same-sex marriage, homosexuality rights, etc. The majority rejects this suggestion because “none of these decisions involved what is distinctive about abortion: its effect on what Roe termed ‘potential life’”. However, as the dissent notes, other rights based on the 14th amendment’s guarantee of autonomy and privacy may also fail the test of being “deeply rooted” in tradition. The effect of Dobbs on those other rights may be more complex than what the various Justices suggest. These and other aspects of the Dobbs fallout will be discussed in a future post.

This blog was written with the support of the Friedrich Naumann Foundation for Freedom.

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Image: http://www.internetlawcommentary.com/wp-content/uploads/2015/06/defame530.jpg

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11^th July and all the petitioners to file their propositions of law by 14^th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

Image: http://i.telegraph.co.uk/multimedia/archive/03343/ChrissyChambers_En_3343155k.jpg

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Supreme Court adjourns hearing of Ratan Tata’s Privacy Petition

The writ petition (398/2010) filed by Mr. Ratan Tata against the violation of his right to privacy came up for hearing before a Supreme Court bench on 26^th August 2014. According to the cause list the matter was listed before a three judge bench of Justices HL Dattu, SA Bobde and Abhay Manohar Sapre. However, due to administrative reasons the composition of the bench was changed from 3 to 2 judges.

The new bench composed of Justices HL Dattu and SA Bobde agreed that the case involves important questions of law with respect to Articles 19 and 21 of the Indian Constitution. The bench has listed the matter for directions before a 3 judge bench on 9^th September 2014.

Mr. Tata had filed the petition after his conversations with corporate lobbyist Niira Radia were leaked and published in some magazines and on their websites in 2010. Tata has termed it an invasion of his right to privacy. The petition seeks to protect the privacy of individuals and asks the court to frame guidelines on conversations tapped by government agencies. A statement issued by Tata Sons at that time stated that “Mr Ratan Tata has filed this writ petition on a matter of principle. He believes privacy is an important right for every individual and is keenly following the progress of this case”. Senior Counsel Mr. Harish Salve is representing Mr. Tata in the matter.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)