Trends from the CCG High Court Tracker

Authors: Sravya Movva, Joanne D’Cunha, Bilal Mohamed and Anna Kallivayalil

The CCG High Court Case Tracker (‘Tracker’) is a resource that catalogues decisions featuring the constitutional right to privacy delivered by High Courts across the country. The tracker aims to trace decisions delivered by various High Courts post the verdict in the case of Justice (Retd.) K.S. Puttaswamy vs. Union of India (‘Puttaswamy’), where a nine-judge bench of the Supreme Court reaffirmed the right to privacy as a fundamental right. The Tracker currently captures only the cases reported on Manupatra and has 90 cases in total at present.

This post aims to analyse cases captured in the Tracker and to highlight general trends emerging from the decisions of various High Courts. The analysis is based on cases reported up to 15 March 2022 (CCG will continue to update the tracker periodically).

Cases decided by year

There has been a consistent rise in the number of cases decided by High Courts since Puttaswamy. In the same year as Puttaswamy, i.e., 2017, the Kerala High Court was the first and the only High Court to refer to Puttaswamy in Mini KT vs. Senior Divisional Manager (Disciplinary Authority) LIC and ors, while discussing the dignity of a woman. The Kerala High Court in this case restated the observations on dignity in Puttaswamy and quashed disciplinary actions against a woman employee for her absence from duty on account of compelling circumstances for taking care of her child. The Court held that in order to understand the dignity of a woman, societal background has to be considered. In the year 2018, the High Courts delivered 13 judgements with the right to privacy as a feature, and in 2019, this number rose to 20 judgements. In 2020, the number of cases increased only slightly to a total of 21. This could arguably be due to the fractured functioning of the High Courts during the pandemic. In 2021, the High Courts decided an additional 26 cases that dealt with the right to privacy. Within the first quarter of 2022 (i.e., upto March 2022), the High Courts have already decided upon 9 cases involving the right to privacy. As can be seen from the graph below, there has been a clear trend of High Courts increasingly engaging with the right to privacy.

Which courts have given the most decisions?

The Kerala High Court and the Madras High Court have decided the most number of cases with 14 judgements each that feature the right to privacy. The Kerala High Court, for instance, has dealt with the subjects of autonomy (i.e., 5 judgements) and informational privacy (i.e., 4 judgements) under the right to privacy, the most. Similarly, judgements by the Madras High Court have related largely to surveillance, search and seizure (i.e., 5 judgements), and autonomy (i.e., 4 judgements). The Delhi High Court has pronounced 12 judgements, and the Allahabad High Court follows closely with 10 judgements.

Interestingly, all the judgements from the Allahabad High Court have upheld the right to privacy. Within the judgements given by the Allahabad High Court, a majority of them relate to dignity (i.e., 6 judgements) and informational privacy (i.e., 5 judgements). For instance, the Allahabad High Court in Rajiv Kumar, while interpreting the right to privacy has upheld the right of individuals to not disclose information relating to their prosecution, for an offence committed while they were children or juveniles. In Guruvinder Singh, it has also held that disclosure of information relating to people accused of vandalism or sharing sexually explicity images for purpose of revenge/harassment constitute a violation of privacy.

Bench Strength

Bench strength is also an important metric; a judgement by a larger bench would be binding on more subsequent cases before a High Court. Therefore, a ruling delivered by a larger bench ensures more predictability and consistency. 

Of the 90 cases, 57 cases (63.33%) were decided by single-judge benches while 33 cases (36.66%) were decided by two-judge benches. While the Madras High Court pronounced 14 judgements on the right to privacy covering aspects such as autonomy, bodily integrity, surveillance, search and seizure amongst others, all of them were delivered by single judge benches. Naturally the absence of a larger bench judgement weakens the influence on subsequent cases. The Bombay High Court and Kerala High Court, on the other hand, feature six judgements each with a two judge bench. From the right to make reproductive choices to protection from unlawful search and seizure, the larger bench decisions dealt with vastly diverse issues.

Aspect-focused analysis

The Tracker maps judgements across 5 primary themes of privacy. These are – (a) autonomy, (b) bodily integrity, (c) dignity, (d) informational privacy, and (e) surveillance, search and seizure. The tracker also notes various sub-themes within a case. For depiction of the data, we have considered only the 5 pre-dominant aspects of privacy as listed above.  It is also important to note that the themes of privacy across these cases are not siloed and often have overlaps with one another. For instance, in an appeal by a petitioner against a requirement to disclose details of criminal prosecutions faced as a juvenile, the Court had to engage with issues around both dignity and informational privacy of the individual. Similarly, in cases involving the petitioner’s right to make reproductive choices, there is an interface between the aspects of autonomy and bodily integrity.

The highest number of judgements (24 judgements) given by the High Courts have dealt with the theme of autonomy. For instance, the Jammu and Kashmir High Court in Monika Mehra and the Allahabad High Court in Salamat Ansari have held that an individual’s autonomy to make intimate decisions such as those relating to marriage are a part of the right of privacy. A different approach to autonomy has been taken by the Karnataka High Court in Bushra Abdul Aleem where it held that graduated candidates in the medical field would have to compulsorily provide medical services for one year and this would not be violative of the right to privacy.

This is followed by judgements on the aspects of dignity, and informational privacy, with 23 judgements on dignity and 20 judgements on informational privacy. While dealing with dignity, the Orissa High Court in Subhranshu Rout, held that a victim of sexual offences has the right to have offensive posts erased from any public platform as a part of their right to privacy. Similarly, the Allahabad High Court in Rajiv Kumar, also dealt with dignity when ruling that a requirement to disclose details of criminal prosecutions faced as a juvenile would be violative of the right to privacy. With respect to informational privacy, where a memory card was provided to the accused in a sexual assault case, the Kerala High Court held in Gopalakrishnan P that this action was a serious violation of the right to privacy of a sexual assault victim. On the other hand, the Delhi High Court in Horlicks Ltd has taken a view that the right to privacy cannot be claimed over information that is already available in the public domain.

Surveillance, search and seizure as an aspect of privacy was the primary focus in 15 cases. There was a general consensus amongst the courts that surveillance, search and seizure must be conducted in accordance with the law. The difference amongst the courts was based on the difference in approaches. For instance, the Karnataka High Court in Sudarshan involving the collection of voice samples for comparisons to the voice in phone call recordings held that such a collection would not amount to a breach of privacy or self incrimination. In another case Deepti Kapur, the Delhi High Court examined the admissibility of evidence collected in breach of privacy and held that merely because the rules of evidence favour a liberal approach for admitting evidence, it doesn’t mean that everyone should adopt illegal means to collect evidence.

Bodily integrity as an aspect of privacy saw the fewest number of cases, with only 11 cases focusing on this aspect. For instance, when considering if a State ordered non-consensual DNA test would be violative of the right to privacy, the Karnataka High Court in Venkateshappa held that it would. However, in another case Abhilash R, the Kerala High Court has held that a Court ordered DNA test to determine the paternity of a child does not violate the right to privacy of a child.

General Trends

The 90 cases captured within the Tracker could be divided into the following three broad categories – (a) judgements that have protected and expanded upon the right to privacy, (b) judgements that have taken a limited or restricted view of the right to privacy, and (c) judgements in which the right to privacy has been mentioned but there is no specific analysis through which the right to privacy has been expanded or limited.

With respect to judgements that are in the first category i.e., judgements that have protected and expanded on the right to privacy, the approach is straightforward. The courts in these cases have held that certain actions or inaction have resulted in a violation of privacy, or have reinforced the ability of an individual to pursue an action as a part of their right to privacy. For instance, in Vinit Kumar, when considering the illegal tapping of a telephone conversation, the Bombay High Court clearly held it to be against the right to privacy. In the case of Mahesh Chand Sharma, the Rajasthan High Court held that the right to privacy includes the right of an unmarried mother not to disclose the paternity of the child.Of the 90 cases captured in the Tracker, majority of them i.e, 64 (i.e., 71.11%) cases fall within this category.

A further quantitative analysis of the judgements shows that the Kerala High Court, Allahabad High Court and the Madras High Court have the most number of judgements (i.e., 10 judgements) that protect and expand on the right to privacy. As has been mentioned before, in the case of the Allahabad Court, all of its judgments have expanded the application of the right to privacy (i.e., 10 out of 10 judgements). There are specific categories of cases in which the courts have tended to take a similar view by expanding upon the right to privacy. For instance, courts have generally shown a tendency to protect the reproductive rights of women. The Bombay High Court in XYZ has held that a women’s right to privacy includes a right to make reproductive choices and terminate pregnancy. The Allahabad High Court went ahead to further read in a positive obligation upon a university to provide maternity benefits to students as a part of the right to privacy in the Saumya Tiwari case.

The second category of cases are the ones in which the courts have taken a limited or restricted view of the right to privacy. These cases account for 17 (i.e., 18.89%) of the 90 cases. While these include specific situations and facts, there are specific categories of cases in which the courts tend to take a restricted approach towards the right to privacy. For instance, in cases involving judicial orders to conduct medical examinations during the course of a case, the courts have often held that there is no violation of privacy. An example of this is the X vs. S case in which the Kerala High Court acknowledged the right to privacy in a case where a matrimonial Court required the individual to undergo and produce medical tests. However, the Court interpreted the right narrowly by stating that the right to privacy would not be infringed if the Court requires the production of an individual’s medical records. Another such category of cases are those that involve information that is in the public domain or individuals who can be considered as public figures. For example, in the Ramgopal Varma case, the Telangana High Court has held that while a person has the right to privacy in relation to their family, marriage, children etc., there is an exception when the matter becomes a matter of public record (including through court recordings). The Court held that the right to privacy no longer exists in such a situation and it becomes a legitimate subject for comments from the press and media.

The third category of cases are those where the right to privacy has been mentioned but the courts have not engaged in an analysis that would either expand or restrict the application of the right to privacy. In some cases, the right to privacy or the Puttaswamy judgement have simply been acknowledged by the courts, or have only restated a position of law with respect to privacy. A total of 9 (i.e., 10%) out of 90 cases fall within this category. The courts do not engage with a discussion on the right beyond referencing the judgement or to the right to privacy. The case is often decided based on another facet of law such as the law on trademarks or evidence.. For example, in Alli Noushad, the Kerala High Court has held that conversations between husband and wife are protected as privileged conversation and would be inadmissible as evidence. While the Court remarks that sacrosanctity of a family includes its privacy, it arrived at its decision on admissibility of evidence based on the provisions of the Evidence Act and not by examining the aspects of right to privacy. Simialarly, in Sunil Sachdeva, the case dealt with the right to privacy and discriminatory online posts, however, the Court did not engage with a proactive application of the right to privacy to the facts of the case. It only acknowledged that informational privacy is one of the aspects of the right.      

The blogpost highlights an increasing trend of High Courts engaging with the right to privacy. While it is promising to discover that a majority of the cases involve positive (privacy enhancing or expanding)judgements, they are largely provided by single judge benches. To read more about each case, please visit our Tracker here. Additionally, for summaries on judgements from other jurisdictions, do visit our Privacy Law Library here.

Guest Post: Right to Privacy at Home

This post is authored by Suhavi Arya.

In Justice (Retd.) K.S. Puttaswamy vs. Union of India (“Puttaswamy”) the Apex Court noted that there is a distinction between public and private spaces. Keeping this in mind, this post investigates the scope of one’s right to privacy in one’s own home. In the course of writing this post, I relied on CCG’s Privacy High Court Tracker to identify cases that discuss the extent to which the right to privacy may be interpreted in light of this public-private distinction.

The case of Vilasini vs. State of Kerala from the High Court of Kerala sheds some light on the issue. This case relates to Kerala’s toddy (palm wine) shops, that were increasingly being described as somewhat of an eyesore, with the manufacturing, storage, consumption, and disposal of toddy creating a challenging atmosphere for surrounding residents. The people affected most by the existence of these toddy shops were immediate neighbours. Several individuals filed writ petitions against the operation of toddy shops in their neighbourhoods. One such petition also challenged the shifting of a toddy shop to the petitioner’s colony, which is also near a local “anganwadi”. The writ petitions filed — concerned several different toddy shops and varied issues, however, the Kerala High Court noted that the underlying concern in all these petitions was the protection of their privacy in their own homes and therefore considered these petitions together in a common judgement.

In the judgement, a single judge bench of Justice A. Muhamed Mustaque, stated that since the sale of liquor is regulated by the State, the State is bound to address any implication on the rights of others who are affected by the conduct and placement of toddy shops. Crucially, in this case it was the State that determined the location of toddy shops through a licensing regime. The High Court observed that the Apex court noted in the Puttaswamy case that privacy is not lost or surrendered merely because the individual is in a public space. Privacy attaches to the person and not the place as it part of the dignity of the human being. Furthermore, the Court added that “Privacy has both positive and negative content: The negative content restrains the State from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the State to take all necessary measures to protect the privacy of the individual”. This is important because, while Puttaswamy did not enumerate an exhaustive list of rights that fall under ‘privacy’, it stated that anything that is essential to the dignity of a human being in private can be enforced by the person in public, including their well-being in their homes.

With this in mind, in the case of Vilasini, the Kerala High Court observed that there needs to be a standard by which a violation of privacy can be assessed. The High Court sought guidance from certain judgements of the European Court of Human Rights (‘ECtHR’) and laid down a framework of assessment that may apply in the Indian context as well. After having perused several European cases, the High Court noted that the ECtHR[1]  had developed a test; for an action to be a “breach of privacy, it must have a direct immediate consequence to the applicants’ right to respect for their homes” under Article 8 of the European Convention of Human Rights (respect for home and private life). These ECtHR cases balanced the gravity and severity of nuisance caused by the impugned action with the community’s interests as a whole, assessing if the State had struck a fair balance or violated the right to privacy of an individual. For example, one case concerned noise pollution from bars and discotheques near the petitioner’s house, with the ECtHR ruling that the excessive noise was above the permitted levels and had occurred over a number of years, thus violating the privacy of the petitioner.

In Vilasini, the High Court uses the phrase, a ‘threshold severity test’ to describe this analysis. But the roots of this test, can be traced from these ECtHR cases which relate to the minimum level of severity of the action complained against and an evaluation of the authorities’ role upon a complaint being made. Although Article 8 of the European Convention expressly refers to ‘the home, private life, and family’, the Kerala High Court has read this as a facet of India’s right to privacy doctrine.   Based on this interpretation of the right to privacy, the High Court restrained the operation of one toddy shop and directed the State authorities to assess the privacy impact of the operation of other shops.

The case of Puttaswamy has led to a diverse applicability of privacy and Article 21. New contours of privacy are now being explored in different high courts around the country.  While courts now study the scope of the right to privacy and associated rights, it’s important to chart trends and understand the implications of new facets of privacy being recognised.  The specific contours of privacy and its interactions with the public realm are being developed by courts on a case by case basis, with each new challenge to state action throwing up novel questions for Indian privacy jurisprudence. In furthering this jurisprudence, it is important to keep in mind the most fundamental aspect of privacy – that it is integral to every aspect of a person’s overall well-being. The Kerala High Court’s recognition that the right to privacy includes a right to be left alone and at peace in one’s own home, and the State’s duty to facilitate this, is the concrete application of a new facet of the right to privacy.  

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[1] of Moreno Gomez vs. Spain (Application No.4143/02); Hatton and Others vs. the United Kingdom [GC] (No. 36022/97, ECHR 2003- VIII); Lopez Ostra vs. Spain (Application No.16798/90); Guerra and Others vs. Italy [Application No.116/1996/735/932]; Cuenca Zarzoso vs. Spain [Application No.23383/12]; of Deés vs. Hungary [Application No.2345/06] and Fadeyeva vs. Russia [Application No.55723/00]

Indian courts on the Right to be Forgotten

This post is authored by Krishnesh Bapat

The right to be forgotten empowers individuals to seek de-indexing, erasure, or deletion of their personal data. The right is significant because it enables an individual to “determine the development of their life in an autonomous way, without being perpetually or periodically stigmatised because of specific actions performed in the past”. However,the right to seek the erasure of information from the public domain conflicts with the right to freedom of expression and the right to access information. Thus, even jurisdictions that statutorily recognise the right to be forgotten enforce it in limited circumstances.

In 2014, the European Court of Justice (ECJ) recognised the right in Google Spain SL and Google Inc v Mario Costeja González where the court directed Google to de-index a newspaper article because it disclosed the financial history of the petitioner. De-indexing would remove the site from the search engine’s index (in this case, Google’s) but not from the source web page. The Court noted that in general the petitioner’s (i.e., the data subject’s) rights would override Google’s (i.e., the data controller’s) legitimate interest of prominently publishing the article, however a balance had to be struck depending on the nature of the information, particularly if the information was of interest to the public. In another judgment, Google LLC v CNIL the ECJ ruled that an obligation on a search engine to de-index a webpage for users in the EU did not extend to de-indexing the page in other jurisdictions. Subsequently, Article 17 of the General Data Protection Regulation of the European Union gave statutory recognition to the ‘right to be forgotten’. This Article empowers data subjects to seek the erasure of their personal data, if, among other things,there is no overriding legitimate cause (such as public interest) in the continued processing of their data.

In India, the right is yet to gain statutory recognition. Clause 20 of Data Protection Bill 2021 (‘DPB’), which has been recently scrutinised by a Joint Parliamentary Committee, recognises the right of data principals (i.e., individuals) to prevent the ‘continuing disclosure’ of personal data, if: (i) it has served the purpose for which it was collected or is no longer necessary for the said purpose; (ii) consent for such processing is withdrawn; or (iii) if the disclosure is contrary to any law. However, the right can only be enforced by an order of an Adjudication Officer appointed under the DPB. To get a favourable order, the data principal must demonstrate to the Officer that the interest in preventing the continued disclosure of their data overrides the right to freedom of speech and expression and the right to information of other citizens and the right of the data fiduciary to retain, use and process such data in accordance with provisions of DPB.

While the DPB is yet to be enacted into law, the Privacy High Court Tracker, launched by the Centre for Communication Governance as a part of its Privacy Law Library shows that High Courts across the country have begun to determine the contours of the right to be forgotten as applicable to Indians. Most notable is the Orissa High Court’s decision in Subhranshu Rout @ Gogul v the State of Odisha. This case did not involve a pleading seeking erasure of information. Instead, the discussion on the right to be forgotten arose when a person accused of sexually harassing a woman and uploading images of her on Facebook sought bail. In its judgment rejecting the bail application, the Court noted that while the Indian criminal justice system prescribes strong penal action against the alleged actions of the bail applicant, it did not provide any mechanism to delete the objectionable material from social media permanently. The Court found that allowing such offensive material to remain on social media was an affront to the victim’s privacy rights. The Court discussed the right to be forgotten extensively but did not order the removal of the objectionable material because of a lack of enabling legislation. At the same time, the Court permitted the victim to approach the Court separately, for the erasure of the offensive posts.

The Orissa High Court in Subhranshu Rout was presented with facts that did not require balancing the victim’s rights with the public interest. Unlike the Orissa High Court, the Delhi High Court, on at least two occasions, has passed interim orders enforcing the right to be forgotten against content that may have been in the public interest. The first was the case of Zulfiqar Ahman Khan v Quintillion Business Media. In Zulfiqar, the plaintiff had sought a permanent injunction against the defendant, which had published two articles documenting sexual harassment complaints against him as a part of the #MeToo campaign. After the defendants had agreed to take down the article during the pendency of the suit (without prejudice to their rights), the plaintiffs asked for an injunction against re-publication of the article by third parties. Again, this was not an application seeking erasure of information. Instead, it was a case of plaintiff seeking enforcement of injunction against re-publication of previously injuncted content. But in paragraph 9, the Court cited the right to be forgotten of the plaintiffs as one of the reasons to prevent re-publication of the article. However, the Court did not explain why the plaintiff’s right to privacy should be protected over the right to freedom of speech of the defendants and the right to information of the public at large.

The second case was an interim order in Jorawar Singh Mundy v Union of India where the petitioner sought the removal of a reported judgment from the public domain. In the judgment, the petitioner’s acquittal was upheld by the Delhi High Court. The petitioner’s grievance was that he faced a considerable disadvantage in seeking employment because the judgement showed up whenever anyone conducted a background verification on him. The Court directed Google to de-index the judgment and directed Indian Kanoon (the website where the judgement was posted) to block the judgement from being accessed via search engines. This interim order is subject to change based on the final decision of the Court, but this case is significant because in Jorawar, unlike the cases mentioned above,the petitioner expressly sought enforcement of his right to be forgotten which was granted by the Court.

However in a similar case, the Madras High Court in Karthik Theodre v Registrar General, Madras High Court, in its final decision dated 3 August 2021, adopted a different approach. The petitioner, therein, also sought destruction or erasure or redaction of personal information from a court decision (a judgment of acquittal) that was available in the public domain. While in its interim order, the Court found that a prima facie case was made out for redacting his name, the final judgment recorded that granting such a plea would lead to ‘utter confusion’ in the absence of a proper policy. The Court also observed that it would be more appropriate to await the enactment of data protection legislation which might provide an objective criterion to be followed while dealing with pleas of redaction of names of accused persons who were acquitted from criminal proceedings.

The Supreme Court has also considered the balance between the right to privacy and freedom of speech and expression in the context of judicial orders in R. Rajagopal v State of Tamil Nadu. In that case, the Court recognised that the right to privacy is implicit under Article 21. Still, it did not extend the protection to individuals from publications based on public records, including Court records. The Apex Court also noted that the exception to this rule must be carved out in cases involving a female victim of sexual assault who ‘should not be subjected to the indignity of [being identified by] her name.’ Considering the ease with which personal data can be accessed in the digital age, the scope of the exception may be expanded to include those cases where the publication of a judgment is unjust – as in the case of Jorawar Singh Mundy,where continued publication of the petitioner’s case did not contribute to public discourse but adversely affected his life. However, as the Madras High Court correctly points out, this should not be done in an ad-hoc manner without objective criteria, ideally provided by legislation or a policy formulated by courts themselves.

Nevertheless, until such criteria are enacted in the form of data protection legislation, which may take a while, the High Courts will continue to formulate the law on the right to be forgotten. The Madras High Court may have passed the buck to the legislature, but the Delhi High Court or the Kerala High Court where another case is pending, may not do so. But consistency across courts, especially in the context of judicial orders, is necessary.  

Disclaimer – The author is part of the legal team representing Indian Kanoon in a case related to the right to be forgotten which is pending before the Kerala High Court