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.

Big Brother is Watching : The Right to Privacy for Minors

The 2017 judgement by a 9 judge bench in the case of Justice K.S. Puttaswamy vs. Union of India successfully cemented the Right to Privacy for citizens under Article 21 of the Constitution. The judgement was a turning point in the debate on the right to privacy which has been raised in court time and again starting from the 1964 judgement in the case of Kharak Singh vs. State of UP.

However, this was not the end of the conversation on the right to privacy, the recent decision of the Supreme Court in the case of Amber Tickoo vs Government of NCT of Delhi reignited the debate which surrounds the right to privacy, specifically the right to privacy of minors.

The Amber Tickoo Case

In September 2017, following the murder of a 4-year-old at Ryan International School, Delhi education minister Manish Sisodiya made the decision to install CCTV cameras in every Delhi government school. These cameras would cover not only the hallways and the common areas but also the classrooms. Further, in December of the same year it was decided that the feed from these cameras would be made available online for the parents to access.

 In July 2019, a Delhi government school in Lajpat Nagar became the first school fully equipped with CCTV cameras in all classrooms. According to the government the next step would be to provide the parents access to the live feed through a mobile app which they can access using a password.

These decisions of the Delhi government were challenged before the Supreme Court though a public interest litigation in the Amber Tickoo case. The petitioners argued that the installation of these cameras would result in an infringement of the right to privacy ensured in the Puttaswamy judgement. They also argued that making the live feed of students available online would jeopardize the safety and security of the students.

The Supreme Court dismissed the petition without granting any interim relief, and disposed of the case. Consequently, the implementation of the programme will see almost 1000 schools across Delhi equipped with CCTV camera’s by November.

Right to Privacy in Public Spaces

The Puttaswamy judgement while broadly dealing with the issue of the right to privacy, extended the right to privacy of individuals to the public space.

“If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena. The extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of the home. Yet if dignity is the underlying feature, the basis of recognising the right to privacy is not denuded in public spaces… Privacy attaches to the person and not to the place where it is associated.”

The court thus acknowledges that acts done by individuals in public spaces are not necessarily public in nature, and that individuals would still be guaranteed the right to privacy in such situations.

However, in this case, the right is not being extended to minors. In his interview, Akshay Marathe, a member of Delhi government’s Dialogue & Development Commission Task force on school education argues that classrooms cannot be considered to be private by ‘any stretch of imagination’. Following the principle laid down in the Puttaswamy judgement, despite classrooms being a public space, children still possess a right to privacy, since the right is attached to their person and not the space, they are in. The installation of CCTV cameras in classrooms would thus ignore these rights and appears to imply that minors do not possess the same right to privacy as adults.

CCTV cameras in Schools

The government has supported its decision to install security cameras inside classrooms for many reasons. The decision was made in response to incidents of violence in schools such as the assault of a 4-year-old girl . However, in addition to assuaging safety concerns, the government also states that having access to the live feeds from these cameras would bring down delinquency and truancy complaints for children. This measure is also meant to bolster the confidence of parents in the quality of education being imparted to the students as they would personally be able to judge the performance of the teachers via the live feed.

This experiment with CCTV cameras in school is not a novel concept. Several other jurisdictions have already implemented similar strategies in schools from equipping teachers with two-way radios, to installing CCTV cameras in schools, even in changing rooms. Almost 90% of secondary schools in the UK are now equipped with security cameras, and this constant surveillance has been criticized by many, including the teachers. Research suggests that pupils in UK are monitored as frequently as inmates in prisons and customers at an airport.

A study conducted on CCTV surveillance of primary school children in Israel also concludes that the cameras lead to a growing fear in the children that they were constantly being recorded everywhere. The study also revealed a tension between the normalisation of school surveillance, but increased resistance to other surveillance among children which could eventually cause behavioural problems in the children outside of school.

In addition to the previous problems faced in the implementation of CCTV systems in schools, the Delhi government also faces increased concerns about the responsibility of the government towards the children, as there are no laws which govern the use of CCTV cameras in schools in India. The question of parental access to feeds is also in question as the present digital infrastructure may not be able to support this venture, and the government has given no answers on how it intends to validate the identity of the parents on the smartphone app.

Rights of Minors

The rights of minors differ in aspect and scope from the rights provided to adult citizens of a state. As a vulnerable group of society, the state has chosen to prioritise security concerns over the right to privacy of children. While the installation of CCTV cameras in Delhi government schools is in the limelight now, this is by no means the only policy of such a nature to be implemented in the country. A bench at the Madras High Court recently directed the Tamil Nadu transport commissioner to issue orders mandating the installation of CCTV cameras and GPS in all school buses. Schools in Gurugram are now also set to follow in the footsteps of the Delhi model where the district education officer has called for all government schools to install CCTV cameras. They also allow schools with a paucity of funds to seek additional grants for the installation of these cameras.

While the installation of the cameras has generated mixed reviews with parents being generally happy with the news and teachers apprehensive about the same, the move has ignored some large concerns relating to the scrutiny of minors. The livestreaming of the classroom feeds is one such issue, due to the enormous scale of the process, it will be impossible to ensure the safety of this feed. The feed can be accessed though a mobile app and a password, which makes it vulnerable to leaks. There has also been no research done to investigate the effect of such constant scrutiny on children and teachers.

To sum up, the right to privacy of children is often considered subjugated to other concerns, this can most accurately be seen in the statement by CM Kejriwal which states that “There will be no privacy breach, children go to school for education, to learn discipline and become good citizens of the country… they do not go there for anything private”. It also fully ignores the question of illegal access to these live-feeds by unauthorized parties arguing that “Hypothetically even if one does get access, he will only see 40 kids studying. Nothing more can be obtained out of it.”

The decision to install CCTV cameras in schools ultimately made to benefit students and bolster the security in schools following recent events. However, the move to live-stream feeds from these classrooms has come under considerable scrutiny, with the Government School Teachers Association protesting the same. Following the refusal of the Supreme Court to intervene on the matter, Delhi schools are set to implement the policy, with other places following suit. 

CCG on the Privacy Judgment

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

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

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

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

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

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

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

 Reports of arguments made before the Supreme Court:

• Day 1
• Day 2 – Part I, Part II
• Day 3 – Part I, Part II
• Day 4 – Part I, Part II
• Day 5
• Day 6 – Part I, Part II

Govt pushes UID Bill through to quash SC case

Author: Nikhil Kanekal

The union government’s swift approval of the National Identification Authority of India Bill through the cabinet of ministers on 8 October, even as its law officers stood before the Supreme Court in a related case, is a strategic move that could make the public interest petition infructuous.

If the bill clears Parliament during the winter session, then the United Progressive Alliance’s Unique Identity scheme will finally attain legitimacy and statutory backing. The bill could fashion conditions under which it is mandatory to get an Aadhar card to avail certain public services. This was the stance taken by the government before the court, which is scheduled to hear the matter on 22 October. The supply of subsidised gas is likely to temporarily cease, since the court decided not to modify its order of 23 September.

The current case is causing controversy because certain government departments have made it mandatory to possess an Aadhar card to avail of basic public services. The petition was brought by a retired judge of the Karnataka high court who was asked to obtain an Aadhar card to be paid his dues.

One of counsels for the petitioner admitted that if Aadhar gets Parliamentary approval, the case would fall apart. But the counsel added that they would challenge the newly formed law in that scenario. “Yes, the case will become infructuous. We will have to challenge the law.”

Meanwhile, a fresh news report reveals that thousands of school students not being able to get access to benefits of scholarships announced by the government in Jharkhand:

Data from the district welfare office show that 23, 817 children availed themselves of post-matric scholarships for the SC/ST and OBCs — one of the seven schemes linked to Aadhaar — in 2011-12. But in 2012-13, after Aadhaar was made mandatory for students, this dropped by 35 per cent to 15,638. The sharpest reduction is in the number of beneficiaries from tribal families. In 2011-12, 16,058 ST students got scholarships, while the next year this fell to 8,985.

Government says it cannot provide subsidies without Aadhar

Author: Nikhil Kanekal

The union government’s position on Aadhar attained some clarity during a hearing before the Supreme Court on Tuesday. Attorney General Goolam E. Vahanvati told the bench, “You (citizens) need not take Aadhar. It is not mandatory. But if you want to get a benefit, if you want to get a subsidy, then you need to get Aadhar.”

The court, however, refused to vacate its interim order of 23 September, causing much heartburn to the union government, which simultaneously moved a bill through the union cabinet to legitimize the Unique Identity program or Aadhar. The bill is expected to be tabled in Parliament during the upcoming winter session and finally give Aadhar a statutory status. Justices B. S. Chauhan and S. A. Bobde said the court would hear the case at length on 22 October.

The government submitted to the court that Ministry of Petroleum and Natural Gas (MoPNG) relies on Aadhar to provide subsidies to the public. “There is a problem now. MoPNG distributes subsidised cooking gas to the tune of Rs. 40,000 crores,” said Vahanvati to the bench, adding, “Aadhar is the only foolproof mechanism through which we can do this.”

Justice Bobde observed: “You are saying it is a condition of supply. But there was a series of problems.” – referring to the non-payment of salaries by the Bombay High Court to those who did not possess an Aadhar card, as well as other controversial policies by some departments, who made it mandatory to receive basic public services. “This is a double-edged sword. You file you affidavit with all the other applicants, then we will see,” said the court.

The government approached the court for a modification in its order which said “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had  issued a circular making it mandatory”. This has caused the government concern because it has begun using Aadhar to provide direct cash transfers (Direct Benefit Transfer) to residents so that they can avail subsidies on cooking gas.

Additional Solicitor General Nageshwar Rao, who appeared for three companies engaged in the distribution of cooking gas to consumers, told the court that unless it vacates, at least partially its order, “the distribution of subsidised gas would come to a grinding halt”.

Vahanvati pleaded, “Please see my application; if you can give me some relief today, then thousands of people will benefit.” However, when the court continued to refuse on the ground that it would hear the case later, Vahanvati accepted, but cautioned, “In the meantime people will not get subsidised gas.”

Earlier, a procedural controversy briefly stalled proceedings with Anil B. Divan, counsel for the petitioner, accusing the government’s law officers of “mentioning the matter behind our backs” before different benches of the court. He said the government was attempting to get an order from the court without the presence of the other side. He also claimed that the government had failed to serve its affidavit to all the petitioners in advance, thereby denying them a chance to respond in writing or come prepared to the hearing.

The court adjourned the matter directing the government to serve and respond to all petitioners in the case.

SC asks Govt to make sure Aadhar not mandatory to avail services

Author: Nikhil Kanekal

In a writ petition challenging the Indian government’s tacit insistence on citizens using Aadhar cards for public services,  the Supreme Court passed an interim order on Monday asking the government to make sure that no citizen is denied services for not possessing an Aadhar card.

A bench comprising justices B. S. Chauhan and S. A. Bobde directed the union government to ensure that “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory”.

The court also asked the government to make sure that Aadhar cards are not being given to illegal immigrants: “it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”

The government admitted before the Supreme Court that Aadhar cards were in fact not compulsory. To be sure, the Unique Identity Authority of India (UIDAI), which issues the Aadar cards as a universal identity to citizens, has said Aadhar is not mandatory for public services. However, it increasingly appears that basic public services are not available to citizens that don’t have an Aadhar card. This is being achieved by linking services with Aadhar. In some parts of India this could mean that a person needs to have a UID to get subsidized cooking gas. Although citizens are normally able to avail public services through various other forms of state-issued identification (such as passport, driver’s licence, voter ID, PAN card), the processes being followed by the central government and some state governments on certain public services (registration of marriage) and subsidies (cooking gas) has led many to believe that it is only a matter of time before Aadhar becomes mandatory in order to deal with the state.

In the instant case, a retired judge of the Karnataka High Court was told that he would not be paid his salary and dues, unless he got himself an Aadhar card. Unwilling to accept this, he filed a petition in the Bombay High Court.

An excerpt from a Press Trust of India report carried by Business Standard:

During the brief hearing, the bench of justices B S Chauhan and S A Bobde was told that despite the fact that the Aadhar card is “voluntary” in nature, an order has been issued by the Registrar of the Bombay High Court in pursuance of an order of the state government that it would be necessary for disbursal of salary of judges and staff also.

“The scheme is complete infraction of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty). The government claims that the scheme is voluntary but it is not so.

“Aadhar is being made mandatory for purposes like registration of marriages and others. Maharashtra government has recently said no marriage will be registered if parties don’t have Aadhar cards,” senior advocate Anil Divan, arguing for Justice (retd) K S Puttaswamy, former judge of Karnataka High Court, said.