Navigating the Indian Data Protection Law: Disproportionate state access to personal data

By Shobhit S.

Editor’s note: This blog is a part of our ongoing Data Protection Blog Series, titled Navigating the Indian Data Protection Law. This series will be updated regularly, and will explore the practical implications and shortcomings of the Digital Personal Data Protection Act, 2023 (“DPDP Act”), and where appropriate, suggest suitable safeguards that can be implemented to further protect the rights of the data principals. For a detailed analysis of the Indian data protection legislation, the comprehensive comments provided by the Centre for Communication Governance on the 2022 DPDP Bill and the 2018 DPDP Bill can be accessed here. For a detailed comparison between the provisions of the DPDP Act and the 2022 Bill, our comparative tracker can be accessed here. Moreover, we have also provided an in-depth analysis of individuals’ rights under the DPDP Act in the Data Protection 101 episode of our CCG Tech Podcast.

A brief genesis of the DPDP Act

On August 11, 2023, after a protracted pre-legislative saga involving five drafts in six years, India’s first personal data protection regime, the DPDP Act, came into force. 

The Aadhaar project, involving the systematic accumulation of citizens’ personal data by the state, sparked public discourse surrounding legal protection of informational privacy. Prompted initially to consider the legality of Aadhaar, the Supreme Court emphatically reaffirmed the fundamental right to privacy in Indian constitutional jurisprudence, in its hallowed decision in August 2017 (“Puttaswamy I”). 

Recognising privacy as an innate aspect of human dignity and autonomy, the Court held that any interference with it must be justified against the touchstone of ‘proportionality’. According to the majority opinion, such interference must be: (i) sanctioned by law, (ii) in furtherance of a legitimate purpose; (iii) proportionate in extent to the purpose sought to be achieved; and (d) accompanied with procedural guarantees against abuse. While inconsistencies have been noted (here and here) in the application of the proportionality-standard by the Court, it has become central to fundamental rights adjudication, signalling a putative shift from “a culture of authority to a culture of justification”. 

The Court identified ‘informational autonomy’, i.e., an individual’s control over the dissemination of information personal to them, as a key facet of their privacy. Accordingly, it expressed the expectation that the state would institute a robust data protection framework, aligned with principles enunciated by it. This expectation was restated with added urgency in September 2018, in the Court’s judgement upholding Aadhaar (‘Puttaswamy II’). In fact, the judgement  manifestly rested on the expectation that the state would imminently enact such a framework, following the Srikrishna Committee’s report in July 2018.    

Viewed thus, the DPDP Act represents a long-awaited response to the Court’s directions to protect individuals’ informational privacy, both against the state and private entities. However, it is striking for its disavowal of proportionality (and all its judicial constructions), in its application to the state as a data fiduciary. 

Broad grounds for confidential processing of personal data

Under the DPDP Act, the state can process personal data confidentially, i.e., without the individual’s consent or knowledge (prior or subsequent), towards any state function under any extant law (Section 7(c)). Even without a legally-provided function, it can do so in the ambiguous interests of national sovereignty, integrity or security (Section 7(c)). It can use data collected in any other context by any of its notified agencies, to purportedly facilitate the issuance of benefits, subsidies, certifications, licenses, or permits. (Section 7(b)).¹ Moreover, it can retain any data in perpetuity, even where the original purpose stands served (Section 17(4)). 

The breadth and the malleability of the grounds on which the state can confidentially process personal data, invites the possibility of “function creep” – it enables the state to use personal data collected for a specific purpose towards any other, without the individual’s knowledge and without any other mechanism for accountability. It also magnifies recognised privacy-risks associated with integration of personal datasets at scale and with profiling of citizens by the state. Notably, the power to process data confidentially can be exercised by any “instrumentality of the state” – an expression interpreted liberally by the Court to even include entities such as statutory corporations. While the broad interpretation has generally aided in the invocation of fundamental rights against these ‘instrumentalities’, it empowers them to collect and use personal data in complete opacity under the DPDP Act. 

Admittedly, there are circumstances in which alerting an individual before or upon processing their data may be counterproductive, say, where such processing is to respond to an imminent threat to public security. Nevertheless, since confidential use of individuals’ personal data interferes with their privacy, any grounds for such use must be proportional to the legislative aim sought to be achieved. But in enabling practically limitless and unaccountable processing by the executive, the DPDP Act sidesteps any such consideration. 

A law more cognisant of proportionality would, first, narrowly define the constitutionally permissible ends that the state may pursue via confidential processing. It would require that confidentiality have a rational nexus with the ends and be functionally suitable to achieve them – this would arguably preclude confidential use of personal data for provision of public services, where public scrutiny is particularly crucial. Further, it would require the state to consider alternative means, which are less intrusive, to achieve such ends. For example, if the state envisages confidentially processing citizens’ biometric data for delivery of benefits, the law would require it to consider whether verification of beneficiaries for such delivery can be undertaken using less sensitive forms of personal data. 

Where (and only where) alternative means are not available or feasible, the law would provide narrow grounds for confidential processing, considering the importance of the desired ends and only to the extent necessary to achieve them. In such cases, it would include procedural safeguards to protect individuals’ privacy against arbitrary state interference, per Puttaswamy I. Illustratively, such safeguards could include a requirement to report instances of confidential processing to an independent authority, or to erase personal data after the underlying purpose is served.

Blanket exemption for notified agencies 

In addition to provisions that enable the state to confidentially use personal data for vague purposes, the DPDP Act allows exemption of certain state agencies and instrumentalities from all obligations under it. The executive can notify any such entity, in the interests of national sovereignty and integrity, security of the state, friendly relations with foreign states, maintenance of public order or preventing incitement to any cognisable offence relating to any of these  (Section 17(2)(a)). 

Much like provisions enabling opaque data processing, this exemption (unlike the 2019 Bill (Clause 35) and the 2018 Bill (Clause 43)) does not evince any attempt to balance the state’s powers with the legislative interests sought to be guarded. It enumerates ill-defined interests to enable privacy-incursions, without requiring the state to demonstrate any particular threats to the stated interest. It does not provide any legislative guidance on the nature of the exempted agencies that may be notified. Further, it empowers such entities to process data without upholding any other duties that ordinarily attach to data fiduciaries. These include duties integral to secure data processing (and are wholly unrelated to the interests sought to be protected), such as those to institute security measures to prevent breaches (Section 8(5)) and to protect children’s data (Section 9). In allowing such carte blanche, Section 17 effectively discharges notified entities from their fiduciary relationship with data principals – a relationship considered intrinsic to the processing of an individual’s personal data.

Concluding remarks

The analysis above points to the ways in which the DPDP Act fails to meaningfully protect individuals’ informational privacy against the state.² Styled as a data protection framework, the Act affirmatively facilitates disproportionate encroachment into the private realm, and dubious surveillance measures akin to those struck down by the Court in 1962 (Kharak Singh v State of UP).

It is in recognition of such legally-enabled abuse that the Court recently emphasised the requirement of ‘sufficient safeguards’, in assessing the proportionality of any law (Ramesh Chandra v. State of UP). The decision provides a sound basis for challenging laws that invite even the possibility of abuse, where actual instances cannot (yet) be demonstrated. As Bhatia notes, it acknowledges that abuse usually “takes place not in open contravention of the law, but under the cover of a law that leaves wide discretion for executive action within its interstices”. Hopefully, this exposition of proportionality would assist courts in (at least) reading down the DPDP Act and thereby, reducing the risk of abuse embedded in it.

______________________

¹ Pertinently, Section 7(b) does provide scope for further standards for processing of such data, to be notified under a policy issued by the Central Government. Further, Section 40(1)(e) allows the Central Government to notify specific subsidies, benefits, services, certificates, licences or permits for the provision of which personal data may be processed under Section 7(b).

² As we have argued here and here, these concerns are exacerbated by the lack of regulatory powers and the lack of independence of the statutory data protection authority.

Guest Post: Unpacking the Supreme Court’s interim order on sedition

This post is authored by Dhruv Bhatnagar

On May 11, 2022, the Supreme Court issued a consequential interim order (“Order”) in a batch of petitions challenging Section 124A of the Indian Penal Code, 1860 (“IPC”), which penalises the offence of ‘sedition’. The Order grants the Central Government time to re-examine the validity of Section 124A, and whilst this process is underway, effectively suspends the provision’s operation through these directions:

1. it is “hop[ed] and expect[ed]” that the Central and State Governments will refrain from registering fresh ‘first information reports’, continuing investigations, and taking coercive measures under Section 124A;
2. persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
3. pending legal proceedings relating to sedition are to be kept in abeyance. However, proceedings under other penal laws can continue if no prejudice is caused to the accused.

After briefly explaining the offence of sedition and summarising the facts leading up to the current constitutional challenges, this post analyses the Order along three lines – its impact on fundamental rights; relevance for persons facing prosecution and incarceration for sedition; and possible hurdles to its effective implementation.

Sedition explained

Section 124A is a colonial law penalising (with up to life imprisonment) expression intended to incite hatred, contempt, or disaffection against the Government established by law. This offence is cognisable and non-bailable, meaning that the accused can be arrested without a warrant and grant of bail is not automatic, but rather subject to the discretion of the presiding court. Pertinently, the offences of ‘sedition’ and ‘seditious libel’ were abolished in the UK through the Coroners and Justice Act, 2009, pursuant to recommendations by UK’s Law Commission. Similarly, in furtherance of the Australian Law Reform Commission’s recommendations, in 201o the Australian Government replaced ‘sedition’ with ‘urging violence offences’ in the nation’s federal criminal law. This reform was introduced to modernise and clarify the elements of criminal offences. Thus, although multiple common law jurisdictions have long discarded sedition from their statute books, this archaic offence unfortunately remains in the IPC nearly 75 years after India’s independence. 

Section 124A’s constitutionality was tested in 1962 by a five-judge bench (i.e., a constitution bench) of the Supreme Court in Kedar Nath Singh (analysed here). The provision was declared valid since it was enacted “in the interest of… public order” (¶26). Acknowledging that a broad (or arguably even plain) interpretation of the offence may constitute an unreasonable restriction on free speech under Article 19(2), the Supreme Court limited Section 124A’s applicability to activities inciting violence or having the “tendency to create public disorder…” (¶27). Constitutional law scholars have pointed out that the Supreme Court’s interpretation of Section 124A in Kedar Nath is inconsistent with the provision’s text, which remains overbroad. This interpretative gap has been suggested as a reason for the provision’s misapplication.

Material facts

Against the backdrop of a sharp increase in the registration of sedition cases, several petitioners, challenged the constitutionality of Section 124A before the Supreme Court in 2021. Multiple petitioners (here and here) argued that:

1. Kedar Nath was incorrectly decided because the Supreme Court overlooked the legal standard to legitimately curb speech under Article 19(2). As espoused in Ram Manohar Lohia (decided two years earlier in 1960, analysed here), this standard was a “proximate relationship” (¶13) between speech and apprehended public disorder, not a mere “tendency to create public disorder” (¶27, Kedar Nath).
2. Section 124A is inconsistent with later Supreme Court decisions on free speech, including the seminal Shreya Singhal ruling (analysed here) wherein it was held that only incitement to public disorder, and not mere advocacy or discussion a particular cause can be curbed by law.
3. Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
4. Section 124A’s broadness violates India’s international law commitments, particularly under Article 19 of the ICCPR, requiring restrictions on the freedom of expression to be necessary and unambiguous.  

These petitions were heard by different three-judge benches of the Supreme Court. However, as Section 124A’s constitutionality was upheld by five judges in Kedar Nath, according to the larger bench rule, only a constitution bench having a minimum of seven judges can invalidate Section 124A after conclusively overruling Kedar Nath. Thus, the preliminary question before the bench that passed the Order, comprising of Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, was whether to refer the present-day challenges to a larger bench. The petitions were heard over the course of about a year:

Impact on fundamental rights

The Supreme Court’s intention to prevent unjustified curtailment of fundamental rights through the frequent use of Section 124A is both laudable and clearly represented in its Order. To this end, the Court’s first direction restraining the registration of fresh sedition cases is particularly significant. However, the deferential language used here (“We hope and expect…”) leaves room for ambiguity because:

1. As pointed out by a commentator, legally even softly worded requests in judicial orders must be mandatorily followed. However, the language used in the Order may create needless confusion regarding the binding nature of the Supreme Court’s direction amongst authorities required to abide by it, potentially hampering compliance. Pertinently, despite the purpose of this direction being to restrain Section 124A’s invocation, the word ‘stay’ is conspicuously absent. This contrasts with the univocal language previously used by the Supreme Court to stay the operation of contentious farm laws. Given the significance of this direction, the Supreme Court could have phrased the Order in clearer terms.
2. Admittedly, the absence of blanket top-down directions affords the State and lower courts discretion to evaluate situations on a case-to-case basis. However, the Supreme Court’s deference towards the State in operationalising its well-intentioned directions may not be beneficial given the periodic application of Section 124A, particularly in recent years. According to the online publication Article 14, there has been a 28% increase in sedition cases between 2014 and 2020, several of which were registered simply for criticising governments and politicians.

Additionally, the Supreme Court’s failure to record detailed reasons justifying its directions dilutes the Order’s precedential value. Had the Supreme Court provided legal reasoning for arriving at its “prima facie opinion” that Section 124A was unconstitutional – such as the provision’s vagueness or incompatibility with subsequent free speech standards – the Order could have been relied upon to buttress similar arguments in cases where other ambiguous penal laws have been challenged. Absent reasons, however, the Order remains highly contextual and neither clarifies nor expands India’s free speech protections.

Admittedly, the Supreme Court’s reluctance to elaborate on its reasons in the Order may be defensible since this was only an interim pronouncement and not a final verdict that reconsidered Section 124A’s constitutionality. However, a reasoned judgment conclusively invalidating Section 124A (as opposed to a government amendment or repeal) would have had a far more enduring impact on Indian free speech jurisprudence. The benefits of such a verdict could have been considered by the Supreme Court before granting the Government’s request for time to re-evaluate the validity of this offence. In light of the Supreme Court’s observations against Section 124A in the Order, it is hoped that the Court will consider issuing a detailed judgment disposing these challenges and conclusively striking-down Section 124A, in case the provision is not repealed by the Government within a reasonable duration.

Relevance for accused persons

The Order provides a strong basis for persons facing prosecution and incarceration for sedition to seek the suspension of legal proceedings and bail. This is evidenced by the Rajasthan High Court’s order directing the state police not to investigate sedition allegations against journalist Aman Chopra because of the Order, and a similar pronouncement by the Kerala High Court staying sedition proceedings against filmmaker Aisha Sultana.

However, for those charged with other offences in addition to sedition, especially under specialised penal statutes like the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), grant of bail is still subject to the stringent conditions prescribed in these statutes. For instance, under Section 43D(5) of the UAPA, bail can be denied if the presiding court is satisfied that the prosecution’s allegations are “prima facie true”. While interpreting this provision in its Watali verdict (analysed here and here), the Supreme Court prohibited a detailed examination of even the prosecution’s evidence for deciding bail pleas, making it far easier to establish a prima facie case and significantly harder for the accused to be granted bail.   

Research by Article 14 suggests that in nearly 60% of sedition cases filed between 2010 to 2020, offences from other statutes, including the UAPA and the Information Technology Act, 2000 (“IT Act”), have been invoked alongside sedition. For individuals accused of more than just sedition, including journalist Siddique Kappan who is still in jail on charges under the UAPA, suspension of sedition alone might not bring much reprieve unless it is accompanied by wider reforms or stronger protections by courts.

Challenges in implementation

For effective implementation, the Order would have to be promptly communicated to grassroots-level law enforcement authorities spanning over 16,955 police stations. This is an uphill task considering India lacks a standardised framework for communicating judicial orders on constitutional issues to concerned authorities. The lack of such a framework has been cited by digital rights advocates as the primary reason behind the repeated invocation of the unconstitutional Section 66A of the IT Act, despite its invalidation in Shreya Singhal.

Given this context, the Supreme Court should have considered developing an ad hoc mechanism for ensuring compliance with its Order. It could potentially have directed concerned governments to communicate the Order to law enforcement authorities and to file compliance affidavits. Previously, in Prakash Singh v. UoI (analysed here), the filing of such affidavits was ordered to ensure adherence to the Supreme Court’s suggested police reforms.

The Court could also have included a contempt warning in its Order against non-compliant State authorities. It has  previously done so in an order restraining coercive action by the State against persons seeking medical aid online during the second wave of the COVID-19 pandemic. Although it is settled law that contempt proceedings can be initiated by any person aggrieved by the disobedience of general directions intended at achieving constitutional goals, the inclusion of a contempt warning in the Order could have potentially ensured a stronger incentive to comply and apprised those uninitiated in the law about their right to file contempt petitions, if necessary.   

Conclusion

Although the Supreme Court’s Order will likely bring some reprieve to persons facing sedition charges, unfortunately, the Order has limited precedential value given the lack of detailed legal reasoning. Further, the Supreme Court’s direction restraining registration of fresh sedition cases, though binding, should have been worded clearly to avoid ambiguity regarding its mandatory nature. Lastly, in the absence of a framework for communicating the Order to law enforcement authorities, implementing it would be challenging. As a mitigant, petitioners may consider requesting the Supreme Court to direct concerned governments to expeditiously communicate the Order to law enforcement authorities across the country and subsequently file affidavits demonstrating compliance.

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

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

By Arpita Biswas

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.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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

By Arpita Biswas

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.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

 

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

By Arpita Biswas

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).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part II)

By Arpita Biswas

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).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

SC Constitution Bench on the Fundamental Right to Privacy – Day IV (Part I)

By Arpita Biswas

Yesterday, a nine-judge bench continued to hear arguments on whether a fundamental right to privacy exists. Our posts discussing yesterday’s hearings can be found here and here. Today, arguments were advanced on behalf of respondents.The first post discusses arguments made by the Attorney General and the second post covers arguments made Senior Counsel CA Sundaram, appearing for the State of Maharashtra.

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

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

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

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

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

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

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

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

The Attorney General read out several passages from the case.

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

The Bench interjected at a few points.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part II)

By Arpita Biswas

On the 19th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20th and the 26th of July. Our post discussing the hearing on the 20th of July can be found here. Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the first post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.

Appearing for the respondents, Attorney General K.K. Venugopal started with addressing whether the right to privacy was a fundamental right under Article 21. He read out Article 21, and stressed on the exception of procedural requirements.

Relying on Maneka Gandhi vs. Union of India, he stated that Article 21 is restricted to life and personal liberty. Privacy has not been mentioned in this case, which according to the Attorney General, was a deliberate omission.

Focusing on the structure of Article 21, he stated that the deprivation of rights has been built into it. The principle of deprivation also applies to the right to life and liberty, as a result of which these rights are not absolute. Through the built-in exception, the state can take away the right to life and personal liberty, as is seen in instances of the death penalty and incarceration for crimes.

Referring back to Maneka Gandhi, the Attorney General stated that the procedure established by law has to be ‘just, fair and reasonable’.

At this point, Justice Chandrachud asked about the concomitant rights mentioned earlier, which included the right to travel and also the right to a clean environment and asked why those rights were qualitatively different from a right to privacy.

The Attorney General explained that the right to privacy was a specie of the genus, personal liberty. He went on to state that each fundamental right has several species and sub-species and that by virtue of being a specie, each right could not be elevated to the level of a fundamental right. Each specie would have to be scrutinised in its own context. Privacy may be a specie, but it could not be a fundamental right.

The Attorney General then argued on the assumption that right to privacy is in fact a specie of personal liberty. As an amorphous term, it would have its own sub-species. While stating that privacy had several sub-species of its own, he also forwarded the argument that each of these sub-species could not be elevated to the level of a fundamental right.

The right to privacy, according to the Attorney General, is not a homogenous right.

Referring back to the rights under Article 21, specifically the right to food and shelter, the Attorney General stated that the right to life of others would take precedence over the right to privacy.

He stated that claiming a right to privacy would act against the interests of the 270 million starving people in the country. If the right to privacy would get in the way of the smooth functioning of the Aadhaar system, it would lead to the deprivation of food and shelter for millions, ensured by welfare schemes.

He referred to a World Bank report, which stated that a system like Aadhaar should be followed in every developing country. He also stated that biometric collection of data would not lead to fundamental rights being violated, since the right to life of others would be upheld.

He then went on to discuss the Constituent Assembly Debates and also referred to the 4th Amendment in the American Constitution, and how search and seizures were permitted under the amendment.

He stated that interpretation should be carried out in an object-oriented manner. On the matter of interpretation, Justice Chandrachud enquired if he was endorsing the ‘originalist’ school of interpretation, according to which the original intent of the framers, and not evolved jurisprudence had to be considered.

The Attorney General said that it could be interpreted as the Bench preferred.

Referring back to the point about poverty and deprivation, the Attorney General stated that the right to personal liberty could not exist without the right to life and therefore, if conflicts arose, the right to life would prevail over the right to personal liberty.

He then discussed the rise of privacy as a tort and how it was not “a simple matter”.  Referring to cases from the House of Lords, he stated that developments under privacy could not be contained under one single right.

By relying on case laws of several jurisdictions, he stated that courts have generally refused to formulate a specific right to privacy. Aspects of privacy could form common law rights, not fundamental rights.

The Attorney General once again, revisited arguments about poverty and the right to life of others.

At this point, Justice Chandrachud stated that privacy was not “an elitist construct” and that it was for the benefit of the masses as well.

He elaborated his statement with an example. Referring to health concerns of rural Indian women, he asked if forced sterilization of women with cervical cancer could be protected by any fundamental right other than privacy.

The Attorney General referred back to his previous argument, stating that if handing over biometric data was essential to save lives of other people, should you be allowed to not hand over your data?

On this point, Justice Chandrachud stated that one could not deny their obligation to hand over data, as long as certain conditions were met, stating that if it was going to be used by the state to meet legitimate ends, then the obligation could not be denied. He also stated that private organizations should not be allowed to access data without consent.

Referring back to the nature of the right to privacy, the Attorney General stated that the right was not a composite, homogenous right. He stated that one could not combine diverse sub-specie and refer to them under one nomenclature. The right way would be to investigate each sub-specie.

Justice Bobde enquired about the qualitative difference between a fundamental right to privacy and a common law right. He stated that they were both protected rights and enforceable by law.

The Attorney General stated that the common law right could not be a public law right, and one could only file a civil suit.

Justice Bobde stressed on the qualitative difference and clarified that the above mentioned points were matters of implementation.

The Attorney General stated that unlike fundamental rights, common law rights could not be tested against the constitution. Common law remedies are wide and they could be sought out by a civil suit and damages.  The action itself would be void.

Discussing the matter of pitting fundamental rights against each other, Justice Nariman described the various stages of the right to privacy being recognized, stating that at the first stage every sub-specie of privacy, under the right to personal liberty, would be protected under Article 21. At the second stage, a scheme like Aadhaar would be enacted and at the third stage, one would consider whether the validity of state action was ‘just, fair and reasonable’. He clarified that the process wouldn’t just be limited to pitting one fundamental right against another.

Referring to Article 25, he went on to state that even when there was an express hierarchy between different rights in the constitution, courts had held that those rights would have to be harmonized, and not isolated.

The Attorney General referred back to his contention, stating that the right to privacy could not be realized in a developing country like India. He also expressly stated that the Aadhaar scheme would not turn India into a totalitarian state.

He stated that the right to privacy was vague and amorphous – the construct of privacy was sociological and would not fit in the “jural” context.

At this point, the Bench asked if there could at all be a fundamental right, and clarified that this was a separate question from whether there was a specific right in this context. They clarified that the scope of the case was not considering whether the Aadhaar scheme was fundamental or not. The Bench further clarified that the issue of ‘sub-species’ was not going to be considered in this case either, and stressed on the scope of the case.

Justice Bobde clarified that the petitioners had already stated that the right was homogenous.

Justice Nariman discussed different forms of privacy. He referred to privacy relatable to the body, the two sub-species related to mind, the dissemination of information and private choices. He then enquired as to which of these aspects would not fit under Article 21.

The Attorney General stated that it was circumstantial.

Chief Justice Khehar stated that circumstances would only come up if there was a fundamental right to privacy to begin with.

The Attorney General referred to a list of countries that did not uphold the right to privacy, to which Justice Chandrachud stated that there were several other countries where privacy is a recognized right. The Attorney General stated that only certain jurisdictions would have persuasive value though.

The Attorney General also stated that privacy is a derivative interest and is automatically secured by more concrete rights. Referring back to Justice Nariman’s query about bodily integrity and privacy relating to the mind, he stated that these could be secured by other rights, and that recourse need not be had to privacy. Stressing on the vague nature of privacy as a right, the Attorney General stated that the sub-species of privacy would have to be decided before the constitutional bench.

Justice Chandrachud discussed privacy interests in different contexts. Drawing on the example of an employment form, he stated that if a woman is asked how many children she has or whether she’s married, this may not amount to a privacy concern. But, if the same form asks a woman how many abortions she’s had, there could be a privacy interested involved.

Similarly, if a census form asks what marriage you were born of, this may involve a privacy interest.

However, he went on to state that in a few specific instances, such information could be relevant for legislative interests. As per a Maharashtra legislation, the third child in a family would not be allowed to contest elections. In this context, the state has a legitimate interest in knowing specific kinds of information. Concluding his remarks, Justice Chandrachud stated that the right to privacy was to be calibrated.

The Attorney General then stated that a right to privacy could not be claimed if the information in question is already in the public. He relied on examples of census information and information disclosed for elections.  On the point of elections, the Bench stated that elections would not be a relevant example in this context. This lead to a discussion on the right to privacy and right to information under the Representation of People Act, 1951.

The Attorney General went on to discuss the “essence of privacy” and the disclosure of information under Section 33 of the ROPA, by relying on State of West Bengal vs. Sri Pronab Kumar Sur and Ors, AIR 2003 SC 231. He read out relevant parts of the judgment:

“It has been contended with much force that the right to information made available to the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities of the spouse invades his/her right to privacy which is implied in Article 21. After giving anxious consideration to this argument, I am unable to uphold the same. In this context, I would like to recall the apt words of analyzing the right to privacy as an ingredient of Article 21, it was observed:

“There can be no doubt that privacy- dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior”…

…When there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.”

The Attorney General went on to state that even if there is a right to privacy, it would have to function within certain limitations.

Chief Justice Khehar clarified that privacy was an undefined fundamental right. He stated that even defined fundamental rights had limitations, so if privacy is recognized as a fundamental right, there would be limitations built in.

The Attorney General referred back to the point of the marginalized sections of society in the country and how the right to life of others was paramount.

Justice Nariman interjected stating that similar ‘emotional pleas’ were made when the constitutionality of the right to property was being considered. The right to property was removed from the constitution, without due regard being had to the fact that marginalized sections of society would also benefit from such rights. Similarly, marginalized sections would also benefit from a right to privacy.

Justice Chandrachud agreed, stating that we must not “forget the little man’s right to privacy”. He stated that people who have been marginalized have also suffered terrible harms in the absence of a right to privacy, citing examples of forced sterilization of women after the Second World War.

The Attorney General asked to be allowed to argue the matter in front of the five judge bench. The Bench refused, stating that the reason the present bench was hearing the matter was because the respondents did not agree to argue in front of a five judge bench.

At this point, the Attorney General closed his arguments stating that the:

1) There is no fundamental right to privacy.

2) If there is a fundamental right to privacy, it must be a qualified right, since it consists of a diverse sub-species of liberty and every aspect will not qualify as a fundamental right.

At this point, counsel for UIDAI referred to ‘another dimension’ of the argument, stating that privacy may be a right, but it cannot be a fundamental right.

Arguments will continue tomorrow (27/7).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

SC 9 Judge Constitution Bench on the Fundamental Right to Privacy – Day III (Part I)

By Arpita Biswas

On the 19^th of July, 2017, a nine-judge bench was constituted to determine whether there was a fundamental right to privacy. Hearings continued on the 20^th and the 26^th of July. Our post discussing the hearing on the 20^th of July can be found here.Today, arguments were advanced on behalf of the petitioners and the respondents. The hearing has been covered under two posts, the second post can be found here. The first post covers arguments made by Senior Counsel Kapil Sibal, the second post covers arguments made by the Attorney General, appearing for the respondents.

Appearing for the states of Karnataka, West Bengal, Punjab and Puducherry was Senior Counsel Kapil Sibal.

Mr. Sibal began by stating that the present case is concerned with technological issues that did not exist in 1962 and 1964. Referring to the judgment of M.P. Sharma and Kharak Singh, he stated that these issues could not have been considered in the aforementioned cases. Technology allows the state to be pervasive, invasive, gives it the capacity to empower and disempower, and allows the aggregation and disaggregation of data.

He stated that privacy was not an absolute right and that the court should strike a balance to ensure privacy. He also stated that everyone was entitled to privacy over their own body or their DNA and that the state should not have the authority to take that away.

Mr. Sibal went on to discuss more insidious forms of invasion, referring to technologies that allowed imaging from outside the house. He also referred to technology that allowed smart phones to collect data.

He then stressed on the different forms of data access – between citizens and state & citizens and non-state actors. He stated that technology had advanced to the point where one could track cars and that mobile data is also easily accessible. Mr. Sibal went on to discuss a few more points about technology and its invasive powers.

Justice Chandrachud interjected stating that if data has been shared, it has left your device.  Mr. Sibal stated that while that may be true, certain forms of data are encrypted and do not leave your device, citing the example of WhatsApp messages. Justice Chandrachud stressed on his previous point, stating that apart from the concern of the state breaching your privacy there was also the issue of private actors doing so. He cited the example of booking a cab and the information that is shared in the process. Justice Chandrachud stated that when you book a cab on your phone, the price that comes up is based on your aggregated data, which should be of concern as well.

Mr. Sibal stated that there are laws which restrict state access to those forms of data as well. He cited an Australian statute which would ensure that such data is confidential between the user and the driver, and is outside the states access.

Following from Justice Chandrachud’s concern about private organizations and access, he stated that there were various issues with access to data , categorising them into – state having direct access, state having indirect access and access by non-state actors. Mr. Sibal also drew attention to the problem of data that has been shared with a specific government body, and the confidentiality of that data. He stated that there had to be measures taken to ensure that this data was not shared with other govt bodies without the consent of the concerned individual.

Referring back to the 6 judge and 8 judge bench decisions, he stated that M.P Sharma and Kharak Singh could not prevail in the context of this case. He stressed on the fact that ever since these judgments were passed, the relationship between stakeholders had transferred – in light of which, privacy issues had to be addressed afresh.

He also stated that privacy was an inalienable, tacit right which arose from the desire to be left alone. The right to privacy includes the right to protect the inner sphere; and make autonomous life choices. There are three matters that have to be taken into consideration ; subject matter, relations and state.

Referring back to the various issues plaguing access to data, Mr. Sibal contended that the state was now more powerful than ever and privacy had to be understood on the basis of qualitative relations. These included the relations between the citizen and the state and between the citizen and non-state actors.

Chief Justice Khehar stated that the present case was only limited to discussing whether there is a fundamental right to privacy and that the arguments could not be extended beyond that ambit.

Mr. Sibal discussed the case of Riley vs. California. In this case it was unanimously held that warrantless searches of mobile phones were not allowed; he also discussed how increasing storage capacities of phones allowed more access to data than possible previously. He stated that due to increased storage, we could now infer the date of purchase and other details from a phones data. Continuing with Riley, it was stated that cell phones allow for far more intrusive practices than is possible in the physical realm.

Justice Chandrachud brought up the issue informational privacy and stated that under American case law, it is expressly open and is not a part of liberty, as per Justice Scalia. Mr. Sibal stated that the focus should be on Indian jurisprudence and not on how different jurisdictions go about the issue.

Justice Chelameshwar asked where the right should be located, between Article 19, 21 and 25. Mr. Sibal responded stating that the basic premise is that privacy is an inalienable, natural right and because of its nature could manifest in different ways. It has to be seen on a case to case basis, the nature of invasion has to be determined and due to ambiguity of manifestation, the right should not be restricted.

In support, Justice Kaul stated that due to the changing nature of technology we cannot always know how an invasion would manifest. Mr. Sibal then continued with the discussion on Riley vs. California. He referred back to the qualitative relations between the citizen and the state and between citizens and non-state actors. He mentioned that they were both horizontal and vertical rights.

Mr. Sibal then discussed the ‘reasonable expectation of privacy’ in American jurisprudence. He referred to United States vs. Jones, stating that the expectation arose from the constitution. Justice Nariman stated that the ‘reasonable expectation’ doctrine has a larger jurisprudence.

Justice Chelameshwar pointed out that there was a difference between usage and access. He also pointed out that multiple government agencies, could be one entity in some contexts,  and could therefore get access to confidential data. Mr. Sibal responded stating that confidentiality should be absolute and there should be no access if not permitted.

At this point , Justice Chandrachud asked if protection of data should be limited to only blood and DNA or also to other facets like financial data. He stated that financial data can be imperative in determining criminal offences like tax frauds etc.

Mr. Sibal responded saying that for criminal offences, access should be allowed but the state should only be allowed access for ‘legitimate’ and not ‘compelling’ concerns. He stated that if a data protection law was to be implemented, certain principles would have to be followed – 1) the interference should be necessary, 2) for a legitimate interest, 2) interference should be proportionate and 3) procedural safety should be guaranteed.

Mr. Sibal went on to talk about platforms where confidentiality cannot be maintained, stating that in these instances – it should be ensured that users have knowledge of the same.

He then discussed the need for a data protection law, which would emanate from the right to privacy. He also stated that without this law there would only be tortious remedies.

At this juncture, the bench asked for a copy of the private member’s privacy bill. The Bench then went on to discuss Justice A.P. Shah’s Report of the Group of Experts on Privacy.

Referring to the report by Justice A.P. Shah, Mr. Sibal discussed the status of privacy in other jurisdictions.

Mr. Sibal also stated that the privacy of state’s data was important. In the instance that a non-state actor from another country accessed the states data, it should be prosecutable. Mr. Sibal then discussed legislations from the United States of America and other jurisdictions that ensured that specific forms of privacy were upheld – like the Financial Modernization Act and the Telecommunications Act.

Referring to the same report, the Bench drew attention to the fact that privacy should be sector mutual.

Lastly, Mr. Sibal stressed on the fact that no person should be deprived of their personal liberty.

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi