right to privacy

Case BriefsSupreme Court

Supreme Court: The bench of Justice R. Subash Reddy and Hrishikesh Roy*, JJ has held that in a declaratory suit, where ownership over coparcenary property is claimed, the plaintiff cannot be subjected to the DNA test against his wishes.

“When the plaintiff is unwilling to subject himself to the DNA test, forcing him to undergo one would impinge on his personal liberty and his right to privacy.”

The Court explained that DNA is unique to an individual (barring twins) and can be used to identify a person’s identity, trace familial linkages or even reveal sensitive health information. The Court should therefore examine the proportionality of the legitimate aims being pursued, i.e whether the same are not arbitrary or discriminatory, whether they may have an adverse impact on the person and that they justify the encroachment upon the privacy and personal autonomy of the person, being subjected to the DNA Test.

The Court was deciding the case where, in a declaratory suit for ownership over coparcenary property, the plaintiff had already adduced ‘enough’ documentary evidence to prove relationship between the parties. The Court noticed that in such cases, the Court’s decision should be rendered only after balancing the interests of the parties, i.e, the quest for truth, and the social and cultural implications involved therein.

“The possibility of stigmatizing a person as a bastard, the ignominy that attaches to an adult who, in the mature years of his life is shown to be not the biological son of his parents may not only be a heavy cross to bear but would also intrude upon his right of privacy.”

The Court held that in such kind of litigation where the interest will have to be balanced and the test of eminent need is not satisfied our considered opinion is that the protection of the right to privacy of the Plaintiff should get precedence.

It was, hence, held that the respondent cannot compel the plaintiff to adduce further evidence in support of the defendants’ case. In any case, it is the burden on a litigating party to prove his case adducing evidence in support of his plea and the court should not compel the party to prove his case in the manner, suggested by the contesting party.

Important Rulings

Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

DNA test is not to be directed as a matter of routine but only in deserving cases. The presumption of legitimacy is this, that a child born of a married woman is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.

Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633

The discretion of the court must be exercised after balancing the interests of the parties and whether a DNA Test is needed for a just decision in the matter and such a direction satisfies the test of “eminent need”.

Dipanwita Roy v. Ronobroto Roy, (2015) 1 SCC 365

In the said case the husband alleged infidelity against his wife and questioned the fatherhood of the child born to his wife. In those circumstances, it was held that when the wife had denied the charge of infidelity, the Court opined that but for the DNA test, it would be impossible for the husband to establish the assertion made in the pleadings. In these facts, the decision of the High Court to order for DNA testing was approved by the Supreme Court.

[Ashok Kumar v. Raj Gupta, 2021 SCC OnLine SC 848, decided on 01.10.2021]

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

Rajasthan High Court: Pushpendra Singh Bhati J. disposed of the instant petition with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. 

Facts

The facts of the present case are that petitioner is in live-in relationship with petitioner even when she was married with one. The petitioner 1 alleged in the petition that due to continuous harassment and violence, resulting out of her giving birth to a girl child, she had to make a choice of entering into a live-in relationship to live life with liberty and dignity. The present petition was filed to seek protection, as right to life is a fundamental right enshrined under Article 21 of the Constitution of India, and protection of right to life is imbibed in the same, and thus, such fundamental right cannot be done away with, except by due process of law.

Issues

The issues before this Court for consideration are:

(i) Whether the State ought to intervene in the personal relationships of adult citizens?

(ii) As to what would prevail, in case there is a conflict between law and morality; and

(iii) Whether the State, having a duty of protecting its citizens, is having any kind of restrictions, reservations or exception?

Observations

The Court relied on judgment Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 wherein it was observed that surrender of one’s autonomy to another must be willful, and their intimacy and privacy is a matter of their choice.

“64. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.”

The Court relied on judgment in Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 wherein it was observed:

“23. . . . . .The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture.”

The Court relied on judgment S.S. Ahluwalia v. Union of India, (2001) 4 SCC 452  wherein it was observed that “it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.”

 The Court thus observed that it is well- settled that it is not in the Court’s domain to intrude upon an individual’s privacy. Any scrutiny or remark upon the so-called morality of an individual’s relationship and blanket statements of condemnation especially in matters where it is not called into question, to begin with, would simply bolster an intrusion upon one’s right to choice and condone acts of unwarranted moral policing by the society at large.

It was also observed that the sanctity and supremacy of law must be protected at all costs. Even the due process of law through which the fundamental rights of any person are taken away must conform with the principles of justice and fair play and has to be reasonably administered according to the circumstances of the case i.e. there must be a proportionality between the illegality of the act and the right taken away through the due process of law.

The Court held “the present petition is disposed of, with a direction to the petitioners to appear before the Station House Officer, Police Station, Feench, Luni, District Jodhpur alongwith appropriate representation regarding their grievance. The Station House Officer, Police Station, Feench, Luni, District Jodhpur shall in turn hear the grievance of the petitioners, and after analyzing the threat perceptions, if necessitated, may pass necessary orders to provide adequate security and protection to the petitioners.”

[Leela v. State of Rajasthan, S.B. Criminal Misc (Pet.) No. 5045/2021, decided on 15-09-2021]

Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar

Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

Madras High Court: N. Anand Venkatesh, J., remarked that,

There is no doubt with regard to the fact that the moment Judge records an order of acquittal, the identity of a person as an accused is completely wiped out.

Right to be Forgotten?

 Whether an accused person who on being charged for committing an offence and having undergone trial and ultimately been acquitted of all charges by a Court of competent jurisdiction, has the right to seek for destruction or erasure or redaction of their personal information from the public domain?

Whether the above right is traceable to Article 21 of the Constitution of India as a right to privacy which is an intrinsic part of the right to life and personal liberty, hence an enforceable right as held by the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, whether in light of the same, this Court can set out guidelines in exercise of its jurisdiction?

Every counsel in the present matter in unison reverberated the undisputable position of law that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21and as a part of the freedoms guaranteed by Part III of the Constitution. 

Present matter involved a right to reputation which is inherent to the right to life protected under Article 21 of the Constitution.

It was further submitted that a judgment of acquittal gives the accused a right of getting an automatic expungement of his name from all records and particularly from those which are within public domain.

The peculiarity of seeking redaction of the name of accused persons who have been acquitted, has essentially gained significance due to the development of science and technology that has virtually brought everything under the sky to the fingertips of any person who may have access to the internet. The search engines provide information about any person and whatever information is available in the “Cloud” can be accessed by anyone.

 Further, it was stated that a person despite getting acquitted after facing criminal trial has their name reflected in the order or judgment as an accused which identity, they want this world to forget.

High Court came to a prima facie conclusion that an accused person is entitled to have their name redacted from the judgments or orders and more particularly the ones that are available in the public domain and accessible through search engines.

To the above, Court added that there may be ramifications if such a generalized order was passed, and directions were issued. Hence, the need for assistance from the Bar, therefore, seemed imperative.

Initially, this Court was inclined towards the right to privacy, right of reputation and right to live with dignity being read to have a wide scope. The Court felt that it had to come to the rescue until the legislature ultimately enacts the Data Protection Act. However, on a deeper review of the issue, this Court has taken cognisance of the fact that the same is not as simple and straight as it sounded.

Bench elaborating more on the above aspect, stated that Court is called upon to literally strike the name of the person from the order or judgment which recorded the acquittal of the person from the criminal proceedings.

An identity which has already been wiped out by operation of law is sought to be wiped out at a gross level wherever there is reference to the name in the order or judgment.

 Another question that solicited the attention of this Court was at which level of jurisdiction should the process of redaction be done?

High Court found force in the submission of Arun Anbumani, that this Court is only looking at the end product of criminal litigation, which is the final judgment or an order of acquittal which gets published. Counsel submitted that the damage to reputation or dignity starts right from the day a complaint is given, an FIR is registered, an accused gets remanded and when they face trial. At every stage, there is a publication and while seeking for redaction, none of the said publications will be touched.

Counsel further submitted that it is only an order or judgment of acquittal which actually saves the honour of a person whose name has already been tarnished due to various publications that take place and which are also readily available on the search engines.

Court expressed that, if the system is looking for identifying an effective right for a person acquitted in a criminal proceeding, it must be a consummate relief and there is no use in just erasing the name in a final judgment or order.

It was also added that, only Juvenile Justice [Care and Protection of Children] Act, 2015 provides for the complete destruction of the entire criminal record which ultimately removes the person from their identity as an accused person.

Principle of Open Justice

High Court while quoting Bentham and citing the decision of House of Lords in Scott v. Scott, [1913 A.C. 417], stated that in cases like minors and matrimonial disputes, where publicity may be harmful to the subject matter of the lis, the principle of open justice must yield to the still more paramount duty to do justice. After all, publicity is only a means to an end.

Further, the Court added that in India the principle of open justice has been identified as a central tenet of the rule of law. The principle, however, is not monolithic, and encompasses various precepts. In Swapnil Tripathi v. Supreme Court of India (2018) 10 SCC 639, wherein, D.Y Chandrachud, J., identified the following elements:

  1. The entitlement of an interested person to attend Court as a spectator;
  2. The promotion of full, fair and accurate reporting of court proceedings;
  3. The duty of Judges to give reasoned decisions; and
  4. Public access to judgments of Courts.

Therefore, it can be established from the above that public access to judgments of Courts is an integral percept of the concept of open justice, promoting the rule of law.

Whether right to privacy exists in the contexts of judgments and orders of a Court?

The principles laid down in the Supreme Court decision of R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, were affirmed by the 9-Judge Bench in K.S. Puttaswamy’s case. It must, therefore follow that judgments of courts being public record, the right to privacy cannot subsist. The concurring judgment of S.K Kaul, J also recognizes this position. In paragraph 636, the learned judge took note of what has now come to be termed as “the right to be forgotten” and has opined thus:

“If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”

Court decided that the “right to be forgotten” cannot exist in the sphere of the administration of justice particularly in the context of judgments delivered by Court.

An exception to the aforesaid position could be seen in cases of victims of rape and other sexual offences where the Supreme Court directed that the identity of victims cannot be disclosed. [See Nipun Saxena v. Union of India, (2019) 2 SCC 703]

Petitioner’s grievance was that continued reflection of his name as an accused in the judgment of this Court is a violation of his right to privacy under Article 21 of the Constitution or more specifically, its subset, the right to be forgotten.

However, it is a settled position of law that a judicial order of a Court cannot violate fundamental rights under Part III of the Constitution.

The direction sought by the petitioner was to redact his name from an order passed by a co-ordinate bench of this Court in a regular criminal appeal.

In Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, it was conclusively held that a writ does not lie to an order of a Court placed on an equal footing in the matter of jurisdiction.

“…any judicial order, irrespective of the nature of jurisdiction and the strength of the Bench, is, in effect, the order of the High Court as one institution.”

“…since the High Court is one indivisible institution, a writ cannot lie against a judgment or order passed by it for that would tantamount to the High Court issuing writs against itself.”

Sanctity of an Original Record

The High Court is a Court of Record under Article 215 of the Constitution. As a superior Court of Record, it is entitled to preserve the original record in perpetuity. Thus, the sanctity of an original record cannot be altered or otherwise dealt with except in a manner prescribed by law.

No judgment of any Court has been cited to show that the prerogative power of this Court under Article 226 extends to direct alteration of its own records.

This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings.

Therefore, Court declined to grant the relief sought for in the writ petition and hence the same was dismissed. [Karthick Theodore v. Madras High Court, 2021 SCC OnLine Mad 2755, decided on 3-08-2021]

Advocates before the Court:

For Petitioner: Mr.S.Jayavel

For Respondents: Mr. K.Samidurai for R 1 to R 3

Case BriefsHigh Courts

Punjab and Haryana High Court: Avneesh Jhingan, J., while answering the question as to whether compelling an accused to give voice samples would amount to self-incrimination and hence, is violative of Article 20(3), stated,

“The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables.”

The instant revision petition had been filed to assail the order of Additional Sessions Judge, allowing the application of the Vigilance Bureau for taking voice samples of the petitioners.

The allegation was that the petitioners (both typist at Tehsil Banga Complex) were collecting money for getting the sale deeds registered from the Tehsildar and other revenue officials of the revenue department. After taking approval, the mobile used by the petitioners were tapped and after obtaining sufficient evidence from the transcripts the FIR was registered. During the proceedings, an application was filed by the Vigilance Bureau for permission to take voice samples of the petitioners and the same was allowed.

The petitioners argued that the impugned order was in violation of Article 20(3) of the Constitution as it would violate the right to privacy. The contention was that in Section 53 of the CrPC, 1973 there is no power to order taking of voice samples as the same is self incriminatory.

Analysis by the Court

  1. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20 (3)?

The Supreme Court while dealing with the question “Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence” in Ritesh Sinha v. State of U. P., 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India. Similarly, in State of Bombay vs. Kathi Kalu Oghad; (1962) 3 SCR 10, the Supreme Court while addressing the issue with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution, held that,

“the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself…A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.”

The nine Judges Bench of the Supreme Court in K.S. Puttaswamy v. Union of India; 2017 (10) SCC 1, held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. However, holding that this right is not an absolute right, the Bench stated,

“In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable…An invasion of life or personal liberty must meet the threefold requirement of

  1. legality, which postulates the existence of law;
  2. need, defined in terms of a legitimate State aim; and
  3. proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

Considering the above mentioned, the Bench held that voice sample in a sense resemble finger prints and hand writing, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. Hence, the samples collected after having permission in accordance with law would not be a evidence, rather a mean to compare evidence already collected. The Bench clarified,

“To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being tapping of communication devices but after compliance of the procedure laid down. It is in that context that taking of voice samples are necessitated. The samples collected are not evidence in itself, rather are tools to identify the voice recording collected as evidence.”

  1. Whether in absence of any provision in CrPC, can a Magistrate authorize the investigating agency to record voice sample of the accused?

The next question before the Bench was “Assuming that there is no violation of Article 20(3) of the, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?” Reliance was placed by the Court on Ritesh Sinha’s case, (2019) 8 SCC 1, wherein the Supreme Court had stated,

 “We unhesitatingly take the view that until explicit provisions are engrafted in CrPC by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

In view of the above discussion, the contentions raised by the petitioners were rejected and the impugned order was upheld.

[Kamal Pal v. State of Punjab, 2021 SCC OnLine P&H 1541, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsel for the Petitioners: Manbir Singh Batth. Advocate

Counsel for the State: Monika Jalota, DAG, Punjab

Bharat ChughExperts Corner

On the legality of compelling an accused to disclose his smartphone/laptop password, or open his phone through face scan, or fingerprint and the constitutional protection against self-incrimination.  

 

Our smartphones are an extension of our minds and souls. Our deepest desires. Our darkest secrets. Our smartphones know it all. You remember that smartphone ad where the manufacturer said something on the lines of, “your phone knows all about you, but not us”. They were not lying. Your smartphone indeed knows everything about you. Knows way too much – in fact.

It, therefore, comes as no surprise that smartphones can offer up a wealth of evidence as far as criminal investigations are concerned. An accused’s phone reveals not only where the accused was, at a given time, but also who did she text or speak with. It tells us, what did she google and what did she buy online. It also demonstrates the trends and history of her financial dealings. When coupled with a smart watch, a smart car, or even a smart refrigerator, it offers even deeper insights both into the criminal, as well as the crime. It offers much more evidence than a house/office search ever has or will.

Smartphones are, therefore, a great aid in crime detection and investigation and their importance can hardly be emphasised enough.

Our notoriously arcane procedural laws, however, were not designed with the smartphone in mind. Therefore, there is little guidance in our laws, on whether an accused can be compelled to deliver up/produce his smartphone/laptop/email password, in the course of a criminal investigation.

Let us assume that, in a given case, a smartphone/laptop (being “property” or “thing” within the meaning of Criminal Procedure Code, 1973), is seized by the police. However, that – by itself – is not the end of the matter. After that arises the issue of retrieving evidence from that electronic equipment or mailbox. This is what brings us to the elephant in the room.

Legal issue

If the seized smartphone/laptop is locked (as they are likely to be – in almost every case), how do the investigators access the contents of the smartphone/laptop/mailbox and retrieve evidence?

Can the accused be compelled to provide his password, or give his face scan/fingerprint?

Would that violate the constitutional protection against “being compelled to be a witness against oneself”? [Article 20(3) of the Constitution of India.]

And, secondly, is there a provision in our procedural law that permits the investigators to seek disclosure of passwords, face scans, etc.?

The Court’s ruling in Virendra Khanna

These were precisely the questions that arose for consideration in the recent case of Virendra Khanna v. State of Karnataka[1].

 

The facts of the case were fairly straightforward. The accused was charged for an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The investigators claimed that the accused’s smartphone and email account contained crucial incriminating evidence, and since the same were locked, the investigating officer sought Court’s intervention in this regard.

 

To further its case, the prosecution argued:

 

  1. Disclosure of phone or computer password is not in the nature of personal testimony. (Reliance in this regard was placed on State of Bombay v. Kathi Kalu Oghad[2].)
  2. Such an order does not violate the fundamental right to privacy as the right to privacy is not an absolute right and can be curtailed in case:

(a) It is sanctioned by law.

(b) It serves a legitimate State interest/compelling State interest; (prevention and investigation of crime, in this case).

 (c) It is proportionate; in the sense that there is a rational nexus between the object (the discovery of truth in a criminal investigation) and the means adopted to achieve the said object. (The “means”, therefore, should not be excessive and the object sought to be achieved should be so important and time sensitive – so as to justify the making of inroads into someone’s privacy.)

(d) In order to satisfy the requirement of “sanction of law”, the prosecution argued that Section 139 of the Evidence Act, 1872, Sections 54-A and 311-A CrPC empower the court to direct the accused to disclose his password/face scan, etc.

 (e) Analogy was drawn to permissibility of “identification” of the accused, and taking of DNA samples, specimen signatures/handwriting samples, and voice samples.

 

The accused, of course, resisted this on the ground of this amounting to “compulsion to testify against himself”, and a violation of his right to privacy. Further, this, it was argued, amounted to a denial of his right to silence and rights under Articles 20 and 21 of the Constitution.

 

In this background, the Court framed and decided the following issues:

Issue No.

Issue

Court’s decision and reasoning

1.

 Can a direction be issued to an accused to furnish the password, passcode, or biometrics in order to open the smartphone and/or email account? Yes. The investigating officer (IO) can always issue directions for “furnishing of information, material objects or the like”.

2.

 Can a court issue a suo motu order to the accused to furnish a password, passcode or biometrics? No. Investigation is the domain/prerogative of the IO. Court is not supposed to be investigating itself, and can act only on an application filed by either of the parties.

3.

 In the event of a direction being issued and the accused not furnishing the password, passcode, or biometrics, what is the recourse available to an investigating officer? IO can approach the court seeking directions to the accused to provide the same and/or “carry out search of the smartphone or electronic equipment”.

4.

What is the consideration for the issuance of a search warrant in order to search a smartphone or computer system?

 It is open to courts/IOs to issue a notice under Section 91 CrPC to the accused to produce a “document” or “thing” which would include a smartphone, a laptop, etc.

 

Section 92 CrPC may permit the IO and/or the court to seek documents from a “telegraph authority”.

 

Section 93 permits the court to issue search warrants w.r.t. a “place”.

 

These provisions empower the search and seizure of things from a “place” and smartphones, computers, servers, etc. may construed as “places” for the purposes of this section.

 

Further, Section 100 CrPC requires a person in charge of a closed place (analogy to a phone, laptop or a mailbox) to permit and facilitate a search ordered by the court.

 

In emergent circumstances, powers under Section 102 CrPC may also be exercised by the IO to seize electronic equipment, and under Section 165 CrPC a search/seizure can be carried out even without a warrant.

 

Further, Section 69(1) of the Information Technology Act, 2000 also empowers specified officers to pass orders compelling decryption of any information generated, transmitted, received or stored in a computer resource.

5.

 Would the data gathered from a smartphone and/or email account ipso facto prove the guilt of the accused? Depends. Data gathered from the accused’s phone/laptop, etc. would be like any other property/evidence gathered during investigation. What would be the weight attached to such evidence is a fact-intensive exercise and a matter of appreciation of evidence, in the light of specific facts and circumstances of each case.

6.

 Would providing a password, passcode or biometrics amount to self-incrimination or testimonial compulsion? No. Given the law laid down in Kathi Kalu Oghad case[3], such information does not amount to accused being compelled to be “a witness against oneself”. Merely providing one’s password, passcode, biometrics, does not amount to making an “oral statement” or a “written statement”. Therefore, it cannot be said to be a “testimonial compulsion”.

 

Article 20 and Section 161 CrPC are, therefore, not violated.

7.

 Would providing of password, passcode or biometrics violate the right to privacy of a person providing the said password, passcode or biometrics? No. The case comes within the exceptions carved out in Puttaswamy case[4]. The IO, however, should not disclose this information to third parties without the permission of the court and deal with it in a manner conducive to the accused’s right to privacy.

8.

 What steps could be taken if the accused or any other person connected with the investigation were to refuse to furnish a password, passcode or biometrics despite issuance of a search warrant and or a direction to provide a password, passcode or biometrics of that person? In default of accused providing his password, the court can draw an adverse inference against the accused under Section 114 of the Evidence Act, if password is not provided or a wrong password is provided.

 

In such a case of non-cooperation of the accused, the IO may reach out to the manufacturer to access such information and in case of manufacturer not facilitating such access, the IO can, with the permission of the court, “hack into the smartphone and/or email account” with, of course, the necessary expert assistance.

9.

 What are the protection and safeguard that the investigating officer would have to take in respect of the smartphone and/or electronic equipment? No proper rules formulated in this regard. Pending such formulation, Court laid down some broad guidelines, such as inclusion of qualified forensic examiners in such endeavours and preparation of proper chain of custody documents, etc.

 

Comment

The judgment must be lauded for addressing a gaping hole in our procedural law and introducing some semblance of a method to the process.

 

Having said that, the judgment falls short on a few counts. For instance, it fails to engage with the issue of right to privacy in sufficient detail, in general and specifically, the requirement of proportionality.

 

While the court permitted search/seizures of electronic equipment and it added a caveat that when the court is issuing search warrants it should tailor the order narrowly and with precision so as to “preserve the privacy of the concerned” (para 12.22[5]) but, unfortunately, it did not elaborate on this further. More specific directions in this regard would have been apt for the guidance of the courts and the investigators, and would have prevented misuse.

 

Further, the requirement of any transgression into right to privacy being “sanctioned by law” was not sufficiently examined. Though the judgment must be credited for interpreting “place” (used in CrPC) as applicable to a device/electronic equipment/mailbox, (which is a fairly modern and technocratic interpretation), it fails to engage adequately with the other sections relied upon by the prosecution – including Sections 54-A and 311-A CrPC, for instance.

 

Further, the judgment, when it sources the power of seeking passwords to Section 91 CrPC (as tantamount to seeking “documents”), commits another fallacy. It ignores a line of decisions where Section 91 CrPC has been held to be inapplicable in case of an accused. (See, for instance, State of Gujarat v. Shyamlal Mohanlal Choksi[6] and M. Kalanithi Maran v. State[7].) These cases categorically hold that a notice under Section 91 CrPC cannot be issued to an accused as the same amounts to compelling the accused to be a witness against himself. The effect of these decisions has not been considered while sourcing the power to Section 91 CrPC.

 

Another aspect that has not been considered is the fact that, in some jurisdictions, the courts have made a search warrant mandatory in such cases, with a view to ensure some judicial scrutiny. The desirability of having such a safety valve has not been considered adequately.

 

Another aspect of practical importance is the issue of rights of the accused upon seizure. For instance, greater clarity is needed on whether the accused would be able to seek a cloned copy of the smartphone/laptop seized, with a view to be able to use it, and to find out and rely upon exculpatory evidence, if any.

 

We hope a future decision would go into these aspects. Given how vexed the issue is, this is certainly (and hopefully) not the last that we read on this issue.

 

All said and done, the decision is a crucial one. Indeed, there are privacy-related concerns when it comes to smartphones/laptops, etc., but a narrowly tailored right with the investigators to seek such information is the need of the hour. The judgment would hopefully lead to a more nuanced discourse on balancing of the competing imperatives of a proper investigation, on one hand, and the accused’s right to privacy on the other.

 

† Former Judge and Lawyer, Supreme Court of India, e-mail contact@bharatchugh.in.

The Author wants to thank Siddharth, Shreyash, Roopali, Rashi, Yachika, Hamna and Tejbir for their excellent suggestions and research.

[1] 2021 SCC OnLine Kar 5032.

[2] AIR 1961 SC 1808.

[3] Id.

[4] K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809 : 2017 SCC OnLine SC 1462.

[5] Virendra Khanna case, 2021 SCC OnLine Kar 5032.

[6] AIR 1965 SC 1251.

[7] 2003 SCC OnLine Mad 936.

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while citing the scope of Right to Privacy and Right to be Forgotten granted interim protection in light of the same in the present matter.

In the present matter, the petitioner sought for the removal of a Judgment titled: Custom v. Jorawar Singh Mundy, Crl A No. 14 of 2013, from the platforms – Google, Indian Kanoon and vLex.in.

Background

Petitioner who is an American Citizen submitted that when he travelled to India in the year 2009, a case under the Narcotics Drugs and Psychotropic Substances Act, 1985 was lodged against him. Though the trial court had acquitted him of all the charges in the year 2011, for which an appeal was filed and a Single Judge of this Court upheld his acquittal.

Petitioner after his acquittal had travelled back to the United States and pursued law and realized that he was facing a huge disadvantage due to the fact that the judgment rendered by this Court was available on Google search to any potential employer who would check his background before employing him.

Due to the above situation, the petitioner was unable to get employment to his expectations despite having good academic record.

In view of the above, the petitioner issued a legal notice to the respondents for the removal of the Judgment.

Right to Privacy

vLex.in removed the Judgment, however the other platforms did not and hence the petitioner sought removal of the Judgment from all the Respondent platforms, recognizing the Right to Privacy of the Petitioner under Article 21 of the Constitution.

Counsel on behalf of Respondent 1 – Shiva Lakshmi submitted that if this Court directed the removal of the said Judgment, MEITY would accordingly issue directions to the said Respondents 2 – 4 platforms.

Whether a Court Order can be removed from Online Platforms? 

The above issue requires examination of the two rights – Right to Privacy and Right to Information of the Public and Maintenance of Transparency.

Supreme Court’s Constitutional Bench in K.S. Puttaswamy (Privacy-9j.) v. Union of India, (2017) 10 SCC 1 recognised the Right to Privacy.

Orissa High Court in Subhranshu Rout v. State of Odisha 2020 SCC OnLine Ori 878 had also examined the aspect and applicability of the “Right to be Forgotten” qua Right to Privacy, in a detailed manner.

[Also Read: https://www.scconline.com/blog/post/2020/12/07/orissa-hc-read-how-high-court-emphasised-the-need-of-right-to-be-forgotten-in-cases-of-objectionable-photos-and-videos-of-victims-on-social-media/]

High Court on perusal of the above and on careful consideration of the present matter opined that owning to the irreparable prejudice that may be caused to the petitioner, his social life and his career prospects, prima facie in Court’s opinion, Petitioner is entitled to some interim protection, while the legal issues are pending adjudication by this Court.

Therefore, Court directed Indian Kanoon to block the said Judgment from being accessed by using search engines such as Google/Yahoo etc. till the next date of hearing.

Matter to be listed on 20-08-2021.[Jorawer Singh Mundy v. Union of India, 2021 SCC OnLine Del 2306, decided on 12-04-2021]

Advocates before the Court:

For the Petitioner: Sanjay Kumar

For the Respondents: Shiva Lakshmi

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Information Commission (CIC): Suresh Chandra (Information Commissioner) observed that disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

Facts of the Case

The appellant filed an application under the Right to Information Act, 2005 before the Central Public Information Officer, State Bank of India seeking the following information:

  • Furnish me (Yearwise from 2017 to 2018) the relevant portion of Statutory Report/Audit Report/any other report/certificates submitted by Chartered Accountants relating to Electoral Bonds from the books of accounts of SBI.
  • Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act etc. issued to Statutory Auditor i.e. to Chartered Accountants to conduct relating to certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Name and Designation of Officer who is supposed to issue Guidelines, Circulars, Notifications, Office Memorandum Rules and Regulations, Copy of Act relating to certification of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance by Statutory Report i.e. Chartered Accountants relating to Electoral Bonds.
  • Furnish me (Yearwise from 2017 to 2018) relevant portion Accounting Standards, Guidance Notes applicable to conduct the certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Whether the details of Donor and Donee are available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee made available to Chartered Accountants relating to Electoral Bonds while certification/audit/signing of Balance sheets, Profit and Loss Account, Financial Statement, Trial Balance of Electoral Bonds.
  • Details of Donor and Donee of Electoral Bonds from the books of accounts of (a) SBI Mumbai Main Branch Code 00300 (b) SBI Chennai Main Branch Code 00800 (c) SBI Kolkata Main Branch Code 00001 d) SBI New Delhi Main Branch Code 00691.
  • Letter written by Election Commission to The Secretary, Legislature Department Ministry of Law and Justice, Shastri Bhavan New Delhi relating to Electoral Bonds and its impact on Transparency, corruption in India.
  • Details/Records, Correspondence and the impact of certain amendments in the Income Tax Act, the Representation of the People Act 1951 and the Companies Act 2013 to introduce/issue Electoral Bonds for funding political parties of Transparency, corruption in India.
  • Telephone No. and Email ID of CPIO and Appellate Authority as per Official Memorandum of Det of Personnel and Training available on www.rti.gov.in>Circulars.

Dissatisfied with the response, the instant second appeal was filed before this Commission.

Appellant submitted that CPIO’s response was wrong, incomplete and misleading.

Further, the appellant pleaded that the SBI was supposed to uphold public interest and not the interest of political parties and that the SBI was not in fiduciary capacity with any political party and hence had no legal duty to maximize the benefit of any public sector or private sector bank; there was no relationship of “trust” between them.

Adding to the above, appellant requested the Commission to direct the CPIO to provide the complete information and take necessary action as per Section 20(1) of the RTI Act.

With respect to point nos. 6 and 7 of the RTI application it was stated that the information in respect to those points was exempted under Section 8(1)(e) and (j) of RTI Act; information in respect of point no. 11 of the RTI application was not covered within the definition of “information” under Section 2 (f) of RTI Act and no link was maintained in respect of point no. 12 of the RTI Application.

The FAA held that the information relating to electoral bonds issued to various political parties sought by the appellant was held by the bank in fiduciary capacity and hence was denied to the appellant.

Decision

Commission of perusal of the facts and circumstances observed that the respondent revisited the RTI application and reiterated its earlier stand in respect of pint nos 6 and 7 of RTI application that disclosure of the information was exempted under the provisions of Section 8(1)(e) and (j) of the RTI Act.

Bench upheld the respondent’s contention that the disclosure of the names of the donors and donees of electoral bonds from books of accounts may be in contravention of Section 8(1)(e) and (j) of the RTI Act.

While parting with order, Commission stated that there appeared no larger public interest overriding the right to privacy of the concerned donor and donees.

Hence, the appeal was dismissed. [Vihar Durve v. CPIO, SBI; 2020 SCC OnLine CIC 1327; decided on 21-12-2020]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Pankaj Naqvi and Vivek Agarwal, JJ., directed for no coercive action to be taken against a person booked under Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and highlighted the significance of the right to privacy.

Petitioner sought the issuance of a writ of certiorari quashing the impugned FIR under Sections 504, 506 and 120-B IPC and Section 3/5 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020.

The victim is the informant’s wife and mother of two children. Allegation against the petitioner was that he used to visit informant’s house and taking due advantage of acquaintance with the informant’s wife, he attempted to persuade her to change her religion so that he may marry her.

Senior Counsel on behalf of the petitioner submitted that as far as the validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 was concerned, same is the subject matter of challenge in Writ (PIL) Nos. 1756 of 2020 and 1757 of 2020, but the present case, is in regard to upholding the right of privacy as a basic fundamental right covered by Part-III of the Constitution.

Further, it was added to the submissions that no material to substantiate the above contentions were raised and were based on mere suspicion.

Decision

Article 25 provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to the other provisions of Part-III of the Constitution.

Bench observed that no material was placed before the Court which would show that any force or coercive process was being adopted by the petitioner to convert informant’s wife.

Adding to its observation, the Court also expressed that the victim being an adult understands her well being.

She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship.

Referring to the Supreme Court’s decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, the Bench stated that Right to Privacy was upheld in the said decision.

In Joseph Shine v. Union of India, (2019) 3 SCC 39, issue of the right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

Present is a case where all the allegations are prima facie based on suspicion.

In view of the above discussion, the Court stated that the matter requires consideration.

The matter has been listed for consideration on 07-01-2021 and till the next date, no coercive measure shall be taken against the petitioner.[Nadeem v. State of U.P.,  2020 SCC OnLine All 1496, decided on 18-12-2020]

Advocates who appeared before the Court: 

Counsel for Petitioner: Syed Ahmed Faizan, Syed Farman Ahmad Naqvi (Senior Adv.), Zaheer Asghar

Counsel for Respondent: G.A.

Case BriefsCOVID 19Supreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has directed that no State or Union Territory is required to paste posters outside the residence of COVID-19 positive persons, as of now. The State Governments and Union Territories can do so only when any direction is issued by the competent authority under the Disaster Management Act, 2005.

The direction came after a PIL was filed before the Court seeking an end to the practice of authorities affixing posters outside residences of Covid-19 positive persons who are under home isolation. The Petition further prayed that directions be issued to stop publishing the names of COVID-19 positive persons by the official of the Health Department in the States and Union Territories and also to stop freely circulating their names in welfare associations of colony and apartment complex which are serious violation of fundamental rights, right to privacy and right to live with dignity.

However, Solicitor General Tushar Mehta brought the Court’s attention to the guidelines dated 02.07.2020 and submitted that in the said guidelines which have been issued by the Government, Ministry of Health and Family Welfare for home isolation, there are no guidelines for pasting of posters outside the residence of COVID-19 positive persons. The letter issued by the Department of Family Welfare dated 19.11.2020 to Additional Chief Secretaries/Principal Secretaries/ Secretaries(Health) All States/UTs that the Government of India, Department of Health and Family Welfare, Ministry of Health and Family Welfare Guidelines also does not contain any instruction or guidance regarding affixing posters or other signage outside the residences of those found COVID-19 Positive.

“… neither any such direction has been issued by the Government of India nor it is obligatory to any State or Union Territory to paste the posters outside the residences of COVID-19 positive persons.”

[Kush Kalra v. Union of India, 2020 SCC OnLine SC 1017, decided on 09.12.2020]

*Justice Ashok Bhushan has penned this judgment

For petitioner: Advocate Chinmoy Pradip Sharma

For Respondent: Solicitor General Tushar Mehta

For NCT OF Delhi: Advocate Chirag M. Shroff

Case BriefsHigh Courts

Orissa High Court: S.K. Panigrahi, J., while addressing the instant case highlighted the significance of “Right to be forgotten” and observed that,

“…many victims find the criminal justice system complex, confusing and intimidating.”

The instant application was preferred under Section 439 of the Criminal Procedure Code, 1973. Offences pertaining to which the application was preferred were punishable under Sections 376, 292, 465, 469, 509 of Penal Code, 1860 read with Sections 66, 66(C), 67, 67(A) of the I.T. Act, 2000.

Factual Matrix

In the FIR set forth on 03-05-2020, It was alleged that the informant was in love with the petitioner for a period of about one year.

Both the petitioner as well as the informant were village mates and classmates. One day, petitioner went to the house of the informant and taking advantage of her being alone, she was raped and the gruesome incident was recorded on his mobile phone.

Petitioner threatened to kill the informant if she disclosed the incident to her parents and also the photos and videos would be made viral.

Further, it was alleged that the petitioner had maintained physical intimacy with the informant.

Objectionable Photos on Facebook

Upon the informant narrating the incident to her parents, the petitioner opened a fake Facebook ID in the name of the informant and uploaded all the objectionable photos using the said ID in order to further traumatize her.

Initially, the police failed to take any step and portrayed unsoundness of the police system. After much difficulty, finally, the informant could get the present FIR lodged.

Analysis, Law and Decision

Prima facie it appeared to the Court that the petitioner uploaded objectionable photos/videos on a social media platform and on police intervention the same was deleted.

“…the information in the public domain is like toothpaste, once it is out of the tube one can’t get it back in and once the information is in the public domain it will never go away.”

Right of the Victim

Court observed that, the Criminal Justice system prescribes a strong penal action against the accused of the heinous crime but there is no mechanism available with respect to the right of the victim to get the objectionable photographs deleted from the server of the Facebook.

Bench adding to the issue of the right of the victim also stated that there is an unprecedented escalation of insensitive behavior on the social media platforms and the victim like the present one could not get those photos deleted permanently from the server of such social media platforms like Facebook.

Right to Privacy | Right to get Deleted

The statute prescribes penal action for the accused of such crimes, the rights of the victim, especially, her right to privacy which is intricately linked to her right to get deleted in so far as those objectionable photos have been left unresolved.

Right to be Forgotten

Bench notes that presently, there is no statute in India which provides for the right to be forgotten/getting the photos erased from the server of the social media platforms permanently. Whereas, the legal possibilities of being forgotten online or offline cries for a widespread debate.

Adding to the above, it was also stated that every single time, it cannot be expected that the victim shall approach the court to get the inaccurate data or information erased which is within the control of data controllers such as Facebook or Twitter or any other social media platforms.

In the case of Google Spain SL v. Agencia Espanola de Protection de Datos, (AEPD), C-131/12 [2014] QB 1022, the European Court of Justice ruled that the European citizens have a right to request that commercial search engines, such as Google, that gather personal information for profit should remove links to private information when asked, provided the information is no longer relevant. The Court, in that case, ruled that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances; the same would even override the public interest in access to information.

Relying on the decision of the Supreme Court on K.S. Puttaswamy (Privacy-9J), (2017) 10 SCC 1, Court stated that at present,

“…there is no statue which recognizes right to be forgotten but it is in sync with the right to privacy.”

However, the Ministry of Law and Justice, on recommendations of Justice B.N. Srikrishna Committee has included the Right to be forgotten which refers to the ability of an individual to limit, delink, delete, or correct the disclosure of the personal information on the internet that is misleading, embarrassing, or irrelevant etc. as a statutory right in Personal Data Protection Bill, 2019.

Supreme Court in the decision of X v. Hospital ‘Z’, (1998) 8 SCC 296, recognized an individual’s right to privacy as a facet Article 21 of the Constitution of India. It was also pertinently held that the right which would advance the public morality or public interest would alone be enforced through the process of the court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay in the halls known as the courtroom but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day.” 

Delhi High Court in the decision of Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 (175) DRJ 660 also recognised the “right to be forgotten” and ‘Right to be left alone’ as an integral part of individual’s existence.

Karnataka High Court in {Name Redacted} v. Registrar General, WP (Civil) Nos. 36554-36555/2017 decided on 04-01-2018 recognized “Right to be forgotten” explicitly, though in a limited sense. Petitioner’s request to remove his daughter’s name from a judgment involving claims of marriage and forgery was upheld by the Court. It held that recognizing the right to be forgotten would parallel initiatives by ‘western countries’ which uphold this right when ‘sensitive’ cases concerning the ‘modesty’ or ‘reputation’ of people, especially women, were involved.

Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011

Bench observed that the above-stated was the first legal framework which recognized the need to protect the privacy of personal data, but failed to capture the issue of the “Right to be Forgotten”.

Capturing the images and videos with consent of the woman cannot justify the misuse of such content once the relation between the victim and accused gets strained as it happened in the present case.

Adding to its observations, Court stated that

If the right to be forgotten is not recognized in matters like the present one, any accused will surreptitiously outrage the modesty of the woman and misuse the same in the cyber space unhindered.

High Court also stated in reference to the Personal Data Protection Bill that, Section 27 of the draft Bill, 2018 contains the right to be forgotten. Under Section 27, a data principal (an individual) has the right to prevent continuing disclosure of personal data by a data fiduciary. Court points out that the said Bill carves out the “right to be forgotten”.

Bench prima facie stated that the petitioner has not only committed forcible sexual intercourse with the victim girl but has also deviously recorded the intimate sojourn and uploaded the same on a fake Facebook account.

In view of the heinousness of the crime, petitioner does not deserve any consideration for bail at the present stage.

“Indian Criminal Justice system is more of a sentence oriented system with little emphasis on the disgorgement of victim’s loss and suffering, although the impact of crime on the victim may vary significantly for person(s) and case(s)– for some the impact of crime is short and intense, for others the impact is long-lasting.”

Court in regard to the objectionable photos stated that, allowing such objectionable photos and videos to remain on a social media platform, without the consent of a woman, is a direct affront on a woman’s modesty and, more importantly, her right to privacy.

Bench in view of the above was not inclined to enlarge the petitioner on bail. [Subhranshu Rout v. State of Odisha, 2020 SCC OnLine Ori 878, decided on 23-11-2020]

Advocates who appeared in the matter:

For the Petitioner: Bibhuti Bhusan Behera and S. Bahadur, Advocates

For the Opposite Party: Manoj Kumar Mohanty, Additional Standing Counsel

Op EdsOP. ED.

Right to Information Intertwined with Right to Privacy of Personal Information

The Right to Information (RTI) is considered as a fundamental right under Article 19(1)(a) of the Constitution[1] and is often described as a tenet for strengthening the pillars of democracy. The Right to Information Act, 2005 provides for transparency and accountability of Government through access of information to the general public.

On the other side, the right to privacy is also considered as a fundamental right under Article 21 of the Constitution since 2017 when the Supreme Court ruled so in K.S. Puttaswamy v. Union of India[2].

The real challenge is when both these rights are at crossroad and enforcement of any one would lead to other being overridden. Thus, the RTI Act, 2005 paves the way for right to privacy by restricting the disclosure of the information which interferes with the privacy of any individual unless it is required for greater public good[3].

In Girish Ramchandra Deshpande v. Central Information Commission[4] (Girish Deshpande), the issue before the Supreme Court was whether the Central Information Commission (CIC) can deny the information pertaining to the personal matters of a public servant, pertaining to his service career and the details of his assets, liabilities, movable and immovable properties on the basis of exception mentioned in Section 8(1)(j) of the RTI Act, 2005.

Section 8(1)(j) of the  RTI  Act, 2005 provides that: Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen 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 unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to Parliament or a State Legislature shall not be denied to any person.

The Court while expanding the scope of Section 8(1)(j) of the Act in the aforementioned case held that the documents pertaining to the public servant including his employment letter, assets, income tax return, details of gift received, orders of censure/punishment are exempted from being disclose by the virtue of Section 8(1)(j) and qualifies to be personal information. It further observed that the performance of an employee/officer in an organisation is primarily a matter between the employee and the employer and these aspects are governed by the service rules which fall under the expression “personal information”, the disclosure of which would cause unwarranted invasion of privacy of that individual.

Further, the Supreme Court in R.K Jain v. Union of India[5] wherein the appellant sought copies of all note sheets and correspondence pages as contained in an Annual Confidential Report (ACR) and any follow up action pertaining integrity of a public servant was denied on the basis of Section 8(1)(j) of the RTI Act.

Similarly, in 2017 the Supreme Court again reiterated its position in the judgment of Canara Bank v. C.S. Shyam[6], wherein the information sought was of personal information of an employee of Canara Bank. The court while affirming the position of Girish Deshpande[7] as well as R.K. Jain v. Union of India[8] held that personal information is outside the ambit of the RTI and that there was no public interest having larger good involved in respect of personal information being sought.

Privacy Upheld by Judiciary in the Often Referred to “Name and Shame” Decision in Lucknow, Uttar Pradesh

Recently, after the promulgation of the Citizenship Amendment Bill, 2019 (CAA), there were nationwide protests against the Government and the CAA which led the Uttar Pradesh Government/administration to take an unforeseen action against the protestors who were accused of vandalism. The administration displayed banners in the city of Lucknow which had all the details of those protestors including their photographs, name and address, against whom the administration had initiated actions to claim compensation for public vandalism.

The poster sought to confiscation of property if the accused failed to pay up the compensation. This found widespread telecast and reporting in print. The Allahabad High Court had taken a suo motu cognizance of such move considering it to be a gross violation of right to privacy as enshrined under Article 21 of the Constitution.

The Court although had not referred to the judgment of Girish Deshpande[9], but had held that such move by the UP Government was uncalled for and breached the right to privacy of the rioters. Though the judgment in Girish Deshpande[10] had little relation to the referred case here, but it is worth mentioning in the context of right to privacy of personal information which won in this case.

Let us try to Analyse Excerpts of the Ruling by the Allahabad High Court

It has been often said that the right to privacy provides lungs to the edifice of the constitutional system. The slightest injury to this right is impermissible as it would put the values designed and depicted in the Preamble of the Constitution to jeopardy. Primarily, the foregoing was upheld in the ruling by the Allahabad High Court.

The act on the part of district and police administration of Lucknow was in conflict with the right of life and liberty of individuals. The territorial jurisdiction of the Allahabad High Court which was challenged was put to rest with the argument that despite the fact that the action might have happened in Lucknow and no personal injury was caused, but the act on the part of the administration demonstrated gross ignorance of constitutional and democratic values and the fact that it was widely prone to public dissemination via media, it could lead to form a State-wide nature of impugned action.

The administration’s logic to display the names of the accused at a conspicuous place was that it should act as a deterrent to public to take law in their hands and was in public interest. This was challenged to be in violation of people’s fundamental rights. Further, it was held that there was no provision in the current law by which the Government could display such names in public fora and that those persons were not even fugitives.

The Allahabad High Court also questioned rational nexus between the object (to deter public at large from participating in such illegal acts of rioting, etc.) and means (display of identity against whom compensation has been claimed for destroying public property) adopted to achieve the object and further how the extent of interference is proportionate to its need. It was said that the fact that only few peoples’ name was put on the banners while there must be several thousand cases against several accused in the State for several serious crimes, the administration had done a colourable act in exercise of its executive powers.

UP authorities was ordered to take down banners from the road side displaying the personal information of individuals and not to do such acts without authority of law.[11] The UP Government has appealed against the aforesaid order before the Supreme Court, which has not been stayed yet and has been referred to a larger Bench.[12]

Right to Fair Trial over and above Right to Privacy

The issue[13] arose through a matrimonial dispute wherein the family court had admitted a Compact Disk (CD) filed by husband wherein the wife could be heard talking ill about the husband and his family. The husband contended that such derogatory remark amounts to cruelty. Thereafter, the wife approached the Delhi High Court under Article 227 of the Constitution seeking dismissal of the CD being taken on record as evidence. The reasoning provided by wife was that the CD was tampered, therefore unreliable and that the conversation between her and so called friend was recorded without her knowledge or consent which constituted violation of her fundamental right to privacy, therefore not admissible as evidence. For the purpose of case analysis here, we will only consider the legal point pertaining  privacy.

The argument put forth by wife was that privacy had been recognised by the Supreme Court as a fundamental right, available to a person not only against the State but also against private individuals as is recognised by the Supreme Court in  K.S. Puttaswamy v. Union of India[14].

On the other hand, husband’s contention was that although privacy had been recognised by the Supreme Court as a fundamental right, but it was not absolute and subject to reasonable restrictions.

Relying upon other judicial precedents, it was urged that the husband was entitled to establish cruelty on the wife’s part and to prove his case seeking dissolution of marriage on that ground under the family law concerned. Accordingly, the wife’s right to privacy must accede to the husband’s right to bring evidence to prove his case, else the husband would be denied the right to fair trial guaranteed under Article 21 of the Constitution.

The single Judge Bench while considering the various judicial precedents cited on both sides  categorically held that in the case of conflict between two rights i.e. right to fair trial and right to privacy, the fundamental right to privacy had to yield to right to fair trial and thus any incriminating evidence collected through breach of privacy was admissible in the court of law. The court had harmoniously interpreted two fundamental rights which flows out from Article 21 of the Constitution and had observed that no fundamental right is absolute.

The Court relied upon the decision of the Supreme Court in M.P. Sharma v. Satish Chandra[15]  wherein it was contended that the evidence collected should be inadmissible being an illegally compelled evidence and thus is violative of Article 20(3) of the Constitution, the Supreme Court held that although the search or seizure was illegally conducted and may amount to breach of a fundamental right but that would not make the search or seizure invalid in law. The court also relied upon a Supreme Court decision of Pooran Mal v. Director of Inspection (Investigation),[16] wherein the seizure of account books, documents and valuables by income tax authorities was challenged to be in conflict with Articles 14, 19(1)(f), 19(1)(g) and 31 of the Constitution.

The Supreme Court while interpreting the provision of the Evidence Act, 1872 noted that the only test of an admissibility of evidence is its relevancy  and thus it is immaterial whether the evidence is procured through an illegal search or seizure.

Investigation is an Intrusion to Privacy, but the Unearthing of Truth must Happen in the Interest of Justice

The year 2020 has not only been marred by so many deaths due to  Covid-19, but also under mysterious circumstances particularly the much media investigated and publicised case of  Sushant Singh Rajput. Due to dissemination of personal information in public both from the right and wrong parties (referring to the parties in dispute), there is a privacy angle that has gained prominence.

In normal instances, investigation are done by State police and investigative bodies under the Government (State or Central, or both), but the mysterious stories including foul play circling round the matter has allowed the media to take centre stage in investigation. One of the good instances wherein due to free media reporting, the case is probably heading in the right direction otherwise it would have gone under cover long ago. Interestingly, from call data records to WhatsApp chats are on display in several news channels.

Now, this is personal information. Given the background, it may be worthwhile to look into some judicial pronouncements particularly from the admissibility of evidence and court’s opinion on privacy with respect of phone taping. It may be further provided that in current times a separate process is required for accessing phone records from the telecom providers and these pronouncements should not be read in entire isolation.

In R.M. Malkani v. State of Maharashtra[17] it has been held that conversation that is tape-recorded by an external device, without tampering or interrupting telephone lines, is admissible in evidence. In this case the Supreme Court has spelt-out three conditions for admissibility of a tape recording, namely, (a) relevance, (b) voice identification; and (c) proof of accuracy. Further it has been held that evidence, even if procured illegally, is admissible.

In another case of Tukaram S. Dighole v. Manikrao Shivaji Kokate[18], it has been held that tape recordings of speeches are documents under Section 3 of the Evidence Act, 1872 which stand on no different footing than photographs, and are admissible after satisfying the three conditions as laid down inter alia in R.M. Malkani[19]. Further in N. Sri Rama Reddy v. V.V. Giri[20], it has been held that a tape recording can be used to corroborate as well as contradict evidence.

There has been contrary pronouncements as well to include as in State of Punjab v. Baldev Singh[21] where the Supreme Court has held that while considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot  allow admission of evidence against an accused where the court is satisfied that the evidence had been obtained by conduct of which the prosecution ought not to take advantage, particularly when that conduct causes prejudice to the accused.

With times changing, tape recordings have been replaced with WhatsApp chats, however the above principles should still be applicable subject to any evolving judicial pronouncements and evidence laws pertaining e-information.

To conclude, right to privacy is not an absolute right and has to be placed in the context of other rights and values depending upon the facts of the case. And we see the beam balance swaying on either side when right to privacy and other rights are involved as we researched in the foregoing.

*Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in. **Sayantan Dey, Legal and Compliance Professional and Ujjwal Agrawal, Student Researcher Corp Comm Legal.

[1]      Bennett Coleman and Co. v. Union of India, (1972) 2 SCC 788: AIR 1973 SC 106; State of U.P. v. Raj Narain, (1975) 4 SCC 428; Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641: 1986 AIR SC 515.

[2]      (2017) 10 SCC 1.

[3]      S. 8(1)(j) of the Right to Information Act, 2005.

[4]      (2013) 1 SCC 212.

[5]      (2013) 14 SCC 794.

[6]    (2018) 11 SCC 426.

[7]      Supra (Note 4).

[8]      Supra (Note 5).

[9]      Supra (Note 4).

[10]    Supra (Note 4).

[11]  Banners Placed on Road Side in the City of Lucknow, In re, 2020 SCC OnLine All 244.

[12]  <https://www.livemint.com/news/india/sc-new-bench-to-hear-plea-against-allahabad-hc-order-on-lucknow-posters-11584003637212.html>.

[13]    Deepti Kapur v. Kunal Julka, 2020 SCC Online Del 672.

[14]    (2017) 10 SCC 1.

[15]    AIR 1954 SC 300.

[16]    (1974) 1 SCC 345.

[17]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[18]    (2010) 4 SCC 329.

[19]    (1973) 1 SCC  471 : AIR 1973 SC 157.

[20]    (1970) 2 SCC 340.

[21]    (1999) 6 SCC 172.

Op EdsOP. ED.

In 2017, the Supreme Court originated the new fundamental right – right to privacy – by interpreting Article 21 of the Constitution of India.[1] The Supreme Court in its detailed order explains the various facets of privacy, one of which is informational privacy. On the same occasion, the Court laid out a test that can be used to check if any activity of the State violates the right to privacy. In this article, we would delve into one such act of the State.

The Central Government issued a Notification[2] on 31-8-2020 and specified “Scheduled Commercial Banks” as a ‘body’ under Section 138(1)(a)(ii) of the Income Tax Act, 1961[3] that has been empowered to seek any information with regards to an assessee from the data repository of the tax authorities.

It is pertinent to mention that prior to the aforesaid notification, only statutory and governmental authorities like SEBI, MCA and the likes were notified and, in consequence, legally permitted to obtain relevant information in connection with an assessee from taxation authorities. Also, the Government had specified in the notifications the types of information and procedures for request of information and its furnishing by the tax authorities (under certain circumstances). The notifications dictated the broad contours of limitations and mechanism for the exchange of taxation data by the tax authorities.

The term “Scheduled Commercial Banks” is defined under Section 2(e) of the Reserve Bank of India Act, 1934[4] which includes all types of the bank i.e. public, private and international banks. The current number of banks listed under the said Schedule is 225.

Prior to the Notification dated 31st August, the Scheduled Commercial Banks had to take recourse to Section 138(1)(b) of the Income Tax Act which essentially provides for making an application to the income tax authorities for obtaining the particular piece of information from any income tax authorities. Such application was given due consideration on a case-to-case basis.

Now the big question arises as to “Whether the furnishing of tax information of any individual to banks without the consent of individuals concerned, or assessees (in the parlance of the Income Tax Act), violates the right to privacy under Article 21?”

Before analysing the above question, we need to first examine whether the information obtained by the tax authorities is personal enough and ought to receive the protection of the right to privacy that has been recognised as a fundamental right by the Supreme Court in  K.S. Puttaswamy  v. Union of India [5](Privacy judgment).

There are various examples in both regulations and judicial pronouncements conferring tax information as an intrinsic part of one’s privacy. For the purposes of our inquiry, regulations and judicial pronouncements ought to be looked at and there is sufficient jurisprudence to conclude that tax information forms a part and parcel of one’s privacy.  For example, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011[6] which includes ‘financial information’ as part of “sensitive personal data or information” in Rule  3.

As for the judicial pronouncement, R.F Nariman, J. in the Privacy judgment[7] penned “Taxation laws which require the furnishing of information certainly impinge upon the privacy of every individual which ought to receive protection.”

In Girish Ramchandra Deshpande v. Central Information Commr.[8], the Supreme Court held:

“13. The details disclosed by a person in his income tax returns are “personal information” which stand exempted from disclosure under clause (j) of Section 8(1) of the RTI Act”

The abovementioned regulation and judgment beg the point that information furnished to tax authorities falls inside the ambit of private information. However, it must be stressed sufficiently that, there is no explicit mention of “tax information” as part of sensitive personal data in any of the legislation. Also, the Data Protection Bill, 2019[9]  introduced in Parliament in the monsoon session does not include tax information as part of financial data or ‘sensitive personal data’. This is a clear omission by the legislators and speaks volumes of the legislative intent. Now prima facie any prudent person can deduce that this is a clear invasion of privacy of the taxpayer.

In the Privacy judgment[10], the Supreme Court of India introduced the three-fold requirement for any law/regulation to invade the right of life and privacy. The three-fold requirement is:

  1. Legality, which postulates the existence of law – it is clear that no specific legislation has been passed by Parliament on sharing the data with the scheduled commercial banks rather a gazette notification has been published to this effect. The gazette notification is a method of publication and giving effect to the particular Act/ Rule/Order and it cannot, in itself held to be the existence of law. The Supreme Court in T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer[11] held:

“The object of publication in the Gazette is not merely to give information to the public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of the making of such an order or rule. The version as printed in the Gazette is final.”

The two takeaways from the above judgment are that gazette notification is to provide information to the public about the Act/Rule and secondly, it acts as an official document, nothing more nothing less.

Thus, the requirement of the existence of law is not met.

  1. Need, defined in terms of the legitimate State aim or larger public interest. Section 138(1)(a) provides the sharing of information to enable officers, authorities, and bodies to perform his/her duties under that law. The officers, authorities, and bodies are notified by the Central Government which in its opinion is necessary for “public interest”.

The notification in question does not specify any “public interest” that it aims to achieve, nor does it point out how to achieve that public interest.

As for any duties to be performed under law, the commercial banks are governed by the Reserve Bank of India Act, 1934, and the Banking Regulation Act, 1949[12]. Both these statutes do not cast any correspondent duty or requirement on the bank to collect or gather data from the tax authorities.

Generally, the objects and aim of any Act are mentioned before the starting of any Act/statute. The object and aims show the intention of the legislature in passing that Act. Since no specific legislation has been passed in this case, it cannot be found out what the actual aim is.

We can draw a logical analogy provided by Union of India in Aadhar case[13] where the Attorney General contended that the Aadhar Act aims to provide subsidies to the real beneficiary directly into their bank accounts – the public interest – which is  provided under Section 7 of the Act.

Thus, it is quite clear that both Section 138 and the Notification dated 31st August do not provide any legitimate State aim to provide the information to scheduled commercial banks. The section and notification are vague and ambiguous as to what to achieve.

  • Proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them – since in the present case the ‘object’ (legitimate State aim) is absent, it will be pretty tedious to observe any rational nexus between the object and means adopted to achieve them.

In my opinion, the first two requirements are not met, therefore the question as to proportionality does not arise in this case.

From the above discussion, the Notification dated 31st August does not meet the three-fold requirement that is laid down in Privacy judgment[14].

The Supreme Court in Aadhar judgment[15] had specifically struck down Section 57 of the Aadhaar Act, 2016 which provides any ‘body corporate’ to use Aadhaar for establishing identity. The Court held:

“(c) Apart from authorising the State, even ‘anybody corporate or person’ is authorised to avail authentication services which can be based on the purported agreement between an individual and such body corporate or person. Even if we presume that the legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities.”

Similarly, the notification in question will provide tax information to banks which then can be used for commercial exploitation and data mining. The information revealed in one’s tax return is at the heart of informational privacy; the sharing of such information will amount in all certainty to the violation of the right to privacy. The other important thing that betrays fairness is that all the data sharing is done behind the curtains. Therefore, from all the reasons stated above, Section 138 of the IT Act and the notification allowing sharing of information with commercial banks is in violation of Article 21 of the Constitution of India.

*Author is an advocate practising in Punjab and Haryana High Court and is an alumnus of Jindal Global Law School.

[1] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1

[2] F. No. 22S/136/2020-IT A.II Notification No. 71 /2020 dated 31.08.2020

[3] Income Tax Act, 1961

[4] Reserve Bank of India Act, 1934

[5] (2017) 10 SCC 1

[6] Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011.

[7]  K.S. Puttaswamy v.  Union of India,  (2017) 10 SCC 1

[8]Girish Ramchandra Deshpande v. Central Information Commr., (2013) 1 SCC 212 on p. 217

[9] Personal Data Protection Bill, 2019. The Bill has been referred to a Joint Parliamentary Committee of both the Houses.

[10] K.S. Puttaswamy v.  Union of India,  (2017) 10 SCC 1

[11] I.T.C. Bhadrachalam Paperboards v. Mandal Revenue Officer, (1996) 6 SCC 634 on p. 645

[12] Banking Regulation Act, 1949

[13] K.S. Puttaswamy  v.  Union of India,  (2019) 1 SCC 1

[14] K.S. Puttaswamy v.  Union of India,  (2017) 10 SCC 1

[15]Ibid.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian, JJ has issued notice in a PIL filed seeking directions for formulation of laws to control the circulation of illicit content including sale of obscene and pornographic material inclusive of Child Sexual Abuse Material (CSAM), rape videos and revenge porn on social media platforms.

The plea filed by two law students from Bharati Vidyapeeth (Deemed to be University)’s New Law College, Pune, Abhyudaya Mishra and Skand Bajpai, also seeks formulation of laws to regulate social media access of minors and setting up of an efficient profile verification mechanism.

The petition states that there has been a market established wherein people are involved in the purchase, sale and transmission of obscene material and many such accounts are public accounts which defeats the purpose of “Age Appropriate Content Policy” of the intermediaries.

“When one gets reported or blocked a new one is created mentioning “Old account blocked, hence new one”. This shows scarce regard to law.”

The plea also refers to a report filed by an NGO named India Child Protection Fund in April, 2020, which stated that there has been a surge in the search for keywords like ‘Child porn’ on the internet.

“… 18% individuals exhibited explicit intent for videos where children were choking, bleeding, tortured, in pain or screaming. The demand for this kind of content grew as much as 200% during the project duration. The report also claims that a large number of individuals were found to be concealing their location and criminal activity by using virtual private networks (VPNs) to circumvent government regulation and platform security.”

Highlighting the issue of ‘revenge porn’, the petitioners state that the concept has been prevailing since 2010 and though several Nation States have expressly criminalised revenge porn in their territories, however in India there exists no such legislation.

“The evil of revenge porn and the trade relating to the private graphic information of individuals on social media violates the right to privacy of those affected.”

The petition further states that no minimum prescribed age or any other provision regarding minors’ access to social media has created a situation wherein any material is available for access to any age group, and given the subject matter of this petition, it portrays a disturbing side of these platforms. These minor children fall an easy prey and are often manipulated and exploited by the predators on these social media platforms.

“As per the terms and conditions of Facebook, an individual aged not less than 13 years or any other lawful age as per law applicable can hold an account on their platforms. Individuals agree and provide consent for several conducts on such platforms, however in India any person below the age of majority cannot give a valid consent, there is no law governing age eligibility for using social media in India.”

It is further stated that under Rule 5 of the Information Technology (Intermediaries Guidelines) Rules, 2011, the intermediary has the right to immediately terminate the access or usage rights of the users to the computer resource and also remove non-compliant information in case of non-compliance of Rule 3 that creates several obligations on the intermediaries. However,

“Even though this mechanism is in place, it has had no or very little impact on the transmission and access to the non-compliant information, barring of account under Rule 5 has no impact on the physical or human user of the account and they often create another account as mentioned in paragraph 3 herein, this may create an endless vicious cycle. This suggests the outburst of unverified and fake media profiles along with a number of catfish accounts already prevailing for ulterior motives on social media.”

The petition also seeks a direction to the Government to notify and enforce the Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 and also to include sex education in school curriculum in order to spread awareness regarding the issue. It states,

“Lack of knowledge amongst individuals regarding the functioning of these platforms, associated risks and the security features has made these platforms felicitating exploitation of many, dedicated efforts are required to spread awareness on this subject.”

[Skand Bajpai v. Union of India, Writ Petition(s)(Civil) No(s). 799/2020, order dated 13.10.2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Moushumi Bhattacharya, JJ., while addressing the issues raised in the present petition observed that,

“From bringing to life the act-of-God clause that was mostly regarded as a redundant appendage in contracts to redefining the rules of human engagement, the pandemic has almost been all-pervasive.”

The present lis is born in its wake: upon a unique situation arising where students have been kept away from academic institutions for months together, prompting their parents or guardians to question why regular fees ought to be paid in such a scenario.

PRIVATE UNAIDED SCHOOLS | Concession in Fees

The point of public interest canvassed in the petitions is that private unaided schools should allow the substantial concession in fees as the physical conduct of classes has not been possible for more than 6 months and normal functioning may not resume in a full-fledged manner for several months more.

Profiteering by Schools

The parents or guardians complain of profiteering by the schools by unjustly enriching themselves even as several of the schools have terminated the services of several of the usual employees or have not paid the teachers in full and not incurred the normal expenses needed to physically operate such schools.

School’s Contention 

Almost all the schools represented contended that they have not removed any regular employee from the payrolls, and some even claim that the contractual staff have also been retained and paid during the lockdown.

Institutions controlled by the Church

The institutions controlled by the Church of North India and another which claims to be a linguistic minority educational institution, have objected to the Court seeking to interfere into their affairs.

They suggest that not only do they enjoy a special status accorded by Article 30(1) of the Constitution but they are also protected under Article 19 of the suprema lex.

No drastic measure

By and large, the schools indicate that they have not taken the ultimate drastic measure of excluding students from the limited online classes now conducted, though no fees may have been tendered on behalf of several students for the period beginning April, 2020.

The general refrain is that schools do not look at making any profit and, to the extent, their financial positions may allow, they are ready to accord concessions to parents or guardians of students in financial distress, but a general reduction of fees across the board should not be permitted.

Analysis and Decision

“…courts must exercise extreme self-restraint and not use the extensive amplitude as a springboard for judicial anarchy.”

In a breakdown scenario as a result of any natural calamity or an act of God or when the subordinate judiciary is not available or a litigant has no access to any other court in an extreme case, the High Court must not forget the width of the authority available to it and its constitutional obligation to discharge its duties governed by the overarching established principles designed by what may be loosely said to be the rule of law.

Two other broadheads of objection have been taken by some of the schools as noticed above: under Article 30(1) of the Constitution and under Article 19 thereof read with the right of privacy as espoused.

Court while analysing the set of contentions with regard t minority institutions stated that,

“…even minority educational institutions need to adhere to certain fundamental norms, the most basic of them being that they cannot be run for the purpose of making profit”.

Bench added that the basic requirement is that the fees charged must have some correlation with the facilities provided.

If the facilities provided over a long stretch of time, as for the best part of a year and probably more, cost less because physical classes have not been held, a substantial part of the money saved has to be returned without, for the moment, going to the question as to whether it should be returned pro rata or on a need-based basis.

Assessment of fees

Hence, Court stated that an assessment of the fees demanded or obtained during the lockdown period and in the absence of physical classes in the schools, may not amount to the breach of any right conferred by Article 30(1) of the Constitution in respect of a school run by a religious or a linguistic minority.

The same rule as above should apply to all private unaided schools since they are governed by private contracts between private individuals.

Bench in view of the unprecedented situation and as a one time measure issued the following directions:

  • No increase in fees during FY 2020-2021.
  • From the month beginning April, 2020 till the month following the one in which the schools reopen in the physical mode will offer a minimum of 20% reduction of fees across the board. Non-essential charges for use of facilities not availed of will not be permissible.
  • Session fees traditionally charged periodically will be permissible, but again, subject to a maximum of 80 per cent of the quantum charged for the corresponding period in the financial year 2019-20.
  • The minimum figure of 20 per cent reduction in the monthly tuition fees will be on the basis of the tuition fees charged for the corresponding month in the previous financial year.
  • For F.Y. 2020-21, a maximum of 5% excess of revenue over expenditure will be permissible. The balance excess should be passed on by way of general concession or special concession in cases of extreme distress.
  • No amount towards the arrears on account of revision of pay to teachers or other employees can be passed on in the fees for the financial year 2020-21. The amount on account of arrears may be recovered in 2021-22 and 2022-23, if normal physical functioning resumes by March 31, 2021.
  • There will be no increase in salaries of teachers or of other employees during the financial year 2020-21. In case any school has given effect to a higher pay scale, the difference must not be realised out of the school fees.
  • Parents and guardians of students are requested not to avail of the reduction in schools fees, if their financial situation does not merit the reduction.
  • In addition to the across-the-board reduction, every school will entertain applications from parents or guardians for further reduction or waiver or exemption or delayed or installment payments, as the case may be. Said applications must be supported with financial statements.
  • Such applications have to be filed before the respective schools by November 15, 2020, and every application should be dealt with on an individual basis and a decision communicated to the applicant by December 31, 2020.
  • When an application for further reduction or waiver or exemption or delayed payment of fees has been disposed of by the relevant school but the parents or guardians are aggrieved by the decision, an application may be filed, upon deposit of Rs 1000, to a committee for further adjudication of the request and to assess the decision communicated by the relevant school. Such application has to be filed within 10 days of the rejection.
  • The committee referred to in the immediate preceding clause will be headed by Mr Tilok Bose, Senior Advocate as its chairperson and will be assisted by the Headmistress or Principal of Heritage School and Ms Priyanka Agarwal, Advocate for the parents in WPA 5890 of 2020.
  • The deposit obtained by the committee will be retained by the committee and Rs 800 therefrom disbursed to the auditor or firm of chartered accountants for the first time the accounts of a particular school need to be assessed by the auditor or firm of chartered accountants. For every repeat exercise, meaning studying the accounts of the same school from the second time onwards, Rs 500 per case will be paid to the auditors. The balance amount in the hands of the committee will be used for the purpose of secretarial and managerial services the committee may be required to obtain.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • By November 30, 2020, the committee should indicate a dedicated e-mail account whereat the appeals against the decisions of the schools may be filed.
  • Every application made before the committee must clearly indicate the name and other particulars of the student involved and furnish the e-mail ID of the school and its Principal or the like for the committee to communicate with the school.
  • The committee must endeavour to dispose of every application within 45 days of the receipt thereof and the decision of the committee will be binding, subject to the relevant schools having a right to apply to this court in the present proceedings for the reconsideration thereof.
  • The quantum of fees to be charged for every month will be indicated by the individual schools on any website and the notice-boards of the schools and informed to Advocate for the petitioner in WPA 5890 of 2020.
  • By November 30, 2020, the fees payable in terms of this order for the period up to November 30, 2020, should be tendered on behalf of all students.
  • With effect from December 8, 2020 all schools will be entitled to disallow students whose fees have not been paid in full in terms of this order and those who have not applied for reduction or waiver or the like. However, schools should ensure that this extreme step is taken only after exercising due care and caution.
  • No student will be entitled to apply for a transfer certificate without the full quantum of fees in terms of this order being first discharged.
  • Fees payable by students to boards for examinations or otherwise shall have to be paid in addition to the monthly fees and other charges in terms of this order and no waiver or reduction of the fees or charges payable to the boards may be sought or granted.
  • There will be no refund of the fees already paid.
  • The expenses incurred for developing the infrastructure of the schools should not be passed on to the students during the current financial year, though it will be open to recover the same from the students from financial year 2021-22 onwards, if the physical functioning resumes by March 31, 2021.
  • The cap of five per cent of the revenue over expenditure for the year 2020-21 will be subject to the exception that it may exceed the five per cent only if the general reduction afforded to the parents is not availed of by any of the parents and no student in financial distress has been denied additional concession despite being worthy.
  • No unusual expense should be incurred during financial year 2020-21 and no development or infrastructure expense should be incurred unless absolutely unavoidable.
  • Above directions for any form of concession will not apply to any of the 145 schools where the average monthly fee (calculated on an annual basis over the year from April, 2020 to March, 2021) is less than Rs 800. However, such schools may voluntarily take such measures as deemed fit.
  • The other private unaided schools in the State should also abide by the directions mutatis mutandis, particularly since the matter has been heard extensively and as public interest litigation.

Court made it clear that the present order may not be used as a precedent for the regulation of fees in the schools in future.

The instant petitions will appear next on 07-12-2020 to monitor the progress in the implementation of directions issued.

Moushumi Bhattacharya, J. supported the reasons laid down by Sanjib Banerjee, J., leading to the conclusions.

Bhattacharya, J.,  proposed to supplement three issues: Articles 226, 30(1) and 14 of the Constitution of India together with the right to privacy in the foreground of the arguments made.

The endeavour of the Court is that students must not be caught in the crossfire between their parents and the school authorities.

Under Article 226, the power of the High Courts is

“……..to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of…….”

The order in which the words have been positioned indicate that the writ courts not only have the power to issue the five writs but also to issue orders and directions having the force and effect of the five writs, separately or together, for enforcing the rights guaranteed under Part III of the Constitution. The wide berth contemplated was recognised in Dwarka Nath v. Income Tax Officer, AIR 1966 SC 81 as an enabler for tailoring the reliefs to fit the shape and peculiarities of the case and stretching the parameters of the power “to reach injustice wherever it is found”.

But does that mean that a court’s authority to issue writs under Article 226 is unfettered?

The court draws its own boundaries within which it decides the lis on a number of factors; including but not limited to whether there is an efficacious remedy or alternative forum which the petitioner should have first exhausted, whether the right can be reasonably restricted, where there is stark absence of a public law element in the discharge of duties of the concerned entity or even where the conduct of the petitioner does not call for the court’s intervention on the facts of the case.

The privacy argument of the CNI and the linguistic minority schools is another aspect which should be briefly dwelt on. K.S. Puttaswamy (Privacy-9 J.) v. Union of India (2017) 10 SCC 1 has been placed to elevate the right to privacy as a ‘travelling right’.

It is a right aimed at preserving the spatial and intellectual integrity of an individual in matters of choice and acts as a springboard for the connected freedoms which are guaranteed under the Constitution.

As noticed in several decisions impacting minority institutions, Article 30(1) was contemplated by the framers to serve as a shield and not as a sword. After all, can these schools bypass the statutory requirement of filing their periodic audited financial numbers to the concerned authorities?

Schools cannot be simplistically categorised according to the financial profile of the guardians and whether as such they need a fee-reduction for their wards.

“…a benefit, like a right, cannot be denied to a greater number merely on the ground that it may be misused by a few.”

Adding to the above, Bench also stated that the teachers who need the schools to remain financially solvent for their job-security may also be parents mired in debts/loss of service who would benefit from a fee-reduction. The mechanism proposed had to as inclusive as possible representing the concerns of guardians across the board, irrespective of privilege and financial bracket.

“We have designed a 2-tier mechanism not only to provide guardians with a window for further concessions but also to make the process as free of coercion/ compulsion and as much transparent as is practicably possible under the circumstances.”

[Biplab Kumar Chowdhury v. Union of India, WPA 5530 of 2020, decided on 13-08-2020]

Counsels

For the State: Kishore Datta, A-G, Senior Advocate & Sayan Sinha, Advocate

For Union of India: Y.J. Dastoor, ASG, Senior Advocate & Siddhartha Lahiri, Advocate.

For the petitioner
In WPA 5890 of 2020: Advocates, Sai Deepak, Rishav Kumar Singh, Anurag Mitra, Priyanka Agarwal and Avinash Kumar Sharma.

For the petitioner (in person) In WPA 5378 of 2020: Advocate Partyush Patwari

Op EdsOP. ED.

Privacy is Prime

Right to privacy is one of the most important and fundamental facets of life all over the world. Even in India, it is encompassed under Article 21 of the Indian Constitution. The Indian judicial system, time and again, has recognised the right to privacy i.e. right to maintain confidentiality and privacy in matters related to body, personal life, etc.

In K.S. Puttaswamy v. Union of India[1], the Court observed that:

right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtained “except according to procedure established by law”.

Health Data — What Does it Imply?

By and large, all agree that any individual’s personal data must be legally protected. The expression “personal data” has been defined in the Personal Data Protection Bill, 2019 (hereinafter referred to as “PDPB 2019”) under Section 3(28). Further, under Section 3(36) of PDPB 2019, the data is further categorised into “sensitive personal data” which includes financial data, health data, official identifier, genetic data, sex life, transgender status, etc.

Till date, there is no Indian legislation that has been implemented specifically protecting “personal data” which includes data about or relating to a natural person who is directly or indirectly identifiable.

The definition of “health data” as provided in PDPB 2019 and the definition of “digital health data” as provided in Digital Information Security in Healthcare Act which is at Bill stage (hereinafter referred to as “Disha”) are quite similar.

“Health data” under PDPB 2019 is defined as:

the data related to the state of physical or mental health of the data principal and includes records regarding the past, present or future state of the health of such data principal, data collected in the course of registration for, or provision of health services, data associating the data principal to the provision of specific health services.[2]

The definition of “digital health data” under Disha has some additional aspects in relation to the foregoing definition of “health data” which includes donation details of the individual pertaining to any body part or bodily substance, test results of body or body substance, details of the clinic whose services are availed by the individual. The other aspect is that the definition only covers health data in digital format.[3]

Key Pointers

(1) Disha specifically deals with electronic data of health-related information, whereas PDPB 2019 deals with personal data of any type which also includes health data (in electronic form or otherwise).

(2) The PDBP 2019 is a comprehensive data privacy law which deals with the flow, usage, security protections, remedies of breach associated with personal data across industries, whereas Disha is a sectoral legislation pertaining industry dealing with health data.

(3) Disha primarily applies to clinical establishments[4] which include: hospital, maternity home, nursing home, dispensary, clinic, pathological labs, diagnostic centres, irrespective of the entity nature i.e. company or proprietorship or partnership or government entity or run by a single doctor, etc. and health information exchanges and others established under it.

(4) It is not clear as to the necessity of Disha when we are supposed to enact PDPB 2019. The basic idea is to a have a sector-specific privacy legislation as health data breach is more severe as it causes social discrimination which has economic ramifications as well, adverse profiling, violence and embarrassment to the affected individuals. Apart from this, there is a need to plug the gaps leading to data breaches mainly caused by hacking/IT incidents, unauthorised access/disclosures, theft, improper disposal specific to health information.

(5) As per a global study conducted in 2019, it has been found that nearly 15% of the data breach happen to take place in healthcare organisations.[5] Other global surveys too reflect exponential losses due to health data breach.

Creation of Specific Statutory Bodies Exclusive to Implement Health Data Privacy

In order to ensure confidentiality of “sensitive personal data” specifically referring to health data, the Government is contemplating on passing Disha apart from the recently introduced PDPB 2019 which is the amended version of 2018 Bill. Both the Bills are complementary yet a bit distinct from each other.

PDPB 2019 has a wider scope as compared to Disha which covers all sorts of data including financial data, biometric, religious belongingness, etc. On the other hand, Disha specifically focuses on regulation of the processes related to collection, storing, transmission and use of digital health data; and to ensure reliability, data privacy, confidentiality and security of digital health data.[6]

Disha, in order to ensure confidentiality and privacy of digital health data, seeks to establish National electronic Health Authority of India (NeHA), State electronic Health Authorities (SeHA), the National Executive Committee, State Executive Committees to assist the NeHA and SeHA, health information exchanges which will be managed by Chief Health Information Executive (CHIE), the data controlling authority of the exchange, to regulate and form new standards and protocols for the purpose of proper transmission & collection of digital health data, among other functions for discharge under Disha.

The NeHA and SeHA shall have powers of the civil court under Section 26 of Disha with respect to summoning, examination of witness, inter alia. So, Disha realises the need to have specific bodies to have jurisdictions pertaining this nature of disputes as the current courts are already overburdened with numerous cases.

However, Disha provides for certain matters to be dealt at Sessions Court under Section 43(2) which are as follows:

(a) Data theft.

(b) Fraudulent or dishonest obtaining of health information of another person, which such person is not entitled to obtain.

(c) Where there is serious breach of digital health data under Disha.

Different Layers of Breach and Associated Penalty

Another feature which can be observed is that Disha categorises the penalties for “breach” under Section 37 and “serious breach of digital health information” under Section 38 based on the criminal intent i.e. prescribing penal consequences for intentional, fraudulent or negligent breach of data by the collector. A serious breach under Section 38 would result in punishment with imprisonment from three years up to five years or fine of rupees five lakhs, provided the fine amount may be provided as compensation either in full or partial to the victim of such breach at the discretion of court. A “breach” on the other hand shall result in paying of damages by way of compensation to the owner of such digital health data.

No Commercial Use

Disha puts an express bar on commercial uses of the digital health data. It expressly bars the disclosure to insurance companies, employers, human resource consultants and pharmaceutical companies. This obligation has been imposed on clinical establishments and health information exchanges.

The nature of digital health data is not a concern here, whether the data is identifiable or even anonymous, the prohibition applies.

Health Data Interoperability

One of the anomalies that has been addressed in Disha is the transmission or transfer of data from one clinical establishment to another i.e. the interoperability of health data, in colloquial term, it may be referred to as portability of health data. A patient’s health data when transferred to other clinical establishments not only prevents repetition, but also saves time and money. This provision as enabled by Disha will encourage reuse of digital health data and may result in health practitioners doing away prescribing same tests repetitively, one of the reasons of which is lack of access to patient’s medical history.

Disha also seeks to establish a central regulatory authority to ensure seamless flow of sensitive health data. It provides that Government shall ensure that health information exchanges transmit the data with the consent of data principal i.e. a patient is to be treated as the sole owner of the digital data and no other party including any clinical establishment or any entity has the right to store the information without written consent from the data owner.

Disha provides for security measures to ensure confidentiality of digital health data in the form of the following enabling provisos:

(1) The NeHA shall lay down protocol for transmission of digital health data to and receiving it from other countries under Section 22(1)(e) as well as lay down standards for physical, administration, technical measures keeping in mind privacy and confidentiality for transmission of digital health data.

(2) A clinical establishment shall transfer the data to health information exchange in an encrypted form.

Consent in General under PDPB 2019 with Some Exceptions Versus Stricter Consent Principle in Disha

The similarity of Disha and PDPB 2019 is that both the Bills have adopted same approach to regulate and restrict the health data which is sensitive data of a data principal via the consent-based approach. The point of difference that can be observed between the Bills is that Disha adopts more stringent rules, it requires consent of the data principal at every stage (i.e. from the stage of generation, collection, storage, processing, transmission, access and disclosure). It mandates the data- holder to take consent for any further processing or retaining the data. Disha imposes primary focus on the consent of data principal. It bestows various rights on the owner of data under Section 28 which includes some of the following:

(a) Right to privacy, confidentiality, and security of the digital health data collected or stored.

(b) Right to refuse or grant consent for use, generation or storage of data for specific purposes and to withdraw the consent granted.

(c) It provides right to the owner to know entities or establishments accessing the data.

(d) The right to prevent any transmission or disclosure of any sensitive health-related data that is likely to cause damage or distress to the owner.

(e) Owner has the right to ensure that health data is shared with family members in cases of medical emergency, etc.

(f) The right not to be refused health service, if the data principal refuses consent of generation, collection, storage, transmission and disclosure of their health data.

Section 29(3) of Disha expressly prohibits the use of data for any other purpose, except for which consent has been given. The other cases i.e. for public health-related purposes where digital health data can be used are:

(a) To facilitate health and clinical research.

(b) To promote detection, prevention and management of chronic diseases.

(c) To carry out public health research and analysis.

(d) To undertake academic research.

Provided in the foregoing situations such data should be in de-identified or anonymised i.e. the natural person cannot be identified from such form of data. So, in other words, no consent shall be required in the above four instances as well as when it is a statutory or legal requirement as provided under Disha. The exact instances of statutory or legal requirement are neither expressly nor in finite terms mentioned in the current version and is thus dependant on any form of orders, court decisions or other laws. Disha is supposed to prevail over any other law pertaining digital health data, but there is ambiguity in this regard which is discussed later.

Section 31 of Disha provides that the absolute ownership of the data digitalised is the individual whose data has been digitised, the entities or clinical establishments shall use the data in trust for the owner.

Under PDPB 2019, the approach is a bit relaxed and simpler. The data principal’s consent to use of data is required, but at the same time it has provisions where personal data can be used without consent of the other party i.e. data can be used in cases of medical emergencies, for providing benefits to data principal which is from the State, for compliance with court order, controlling law and order situation, for any licence grant by the State.[7]

The other ground to proceed devoid of consent is on account of “reasonable purposes”[8] which include:

(a) prevention and detection of any unlawful activity;

(b) whistleblowing;

(c) mergers and acquisitions;

(d) network and information security;

(e) credit scoring;

(f) recovery of debts;

(g) processing of publicly available personal data; and

(h) the operation of search engines.

Thus, the instances of non-consent-based dealing with personal data which may comprise health data is more under PDPB 2019 in comparison to Disha.

Which One Prevails PDPB 2019 or Disha? The Possible Lacuna to be Addressed Before its too Late!

Both PDPB 2019 and Disha have overriding provisions which basically outline that the respective laws prevail over any other law wherever inconsistent. Section 52 of Disha and Section 96 of PDPB are the respective provisions. This results in a drawback of possible misconstrued interpretation in cases where a litigant or a party might take the benefit of relaxation in consent terms inter alia as allowed under PDPB 2019 over Disha which has stricter consent terms and has enhanced privacy obligations.

This difficulty should be removed either through amendment or in the form of more elaborative rules connected with the respective Bills when legislated, so that a party does not take advantage of this lacuna quite easily.

However, it appears that the Government’s two wings Ministry of Health and Family Welfare (MoHFW) and Ministry of Electronics and Information Technology (MeitY) are in discussion whether to subsume the protective provisions of digital health data within PDPB 2019 or its amendments to avoid duplicity of efforts.[9]

It may be submitted that a sector-specific legislation is always advisable bringing in the dynamics of a particular sector which it carries. On the other hand, a general law would not be able to accomplish it. Also, that PDPB shall have to be overhauled with the dynamics prevailing in healthcare industry to make its applicability significant.

Another good point is that under Section 55(5) of Disha, it has an enabling provision wherein the Government undertakes to do comprehensive review of all laws relating to health within 1 year of Disha going live so that those are compatible with Disha.

So, there seem to be two alternative approaches working together – one on subsuming Disha into PDPB from the perspective of protecting digital health data; and second on making consistent provisions or removing inconsistent ones to the best extent in compatible with Disha to avoid conflicts among multiple laws.

India, despite being the world’s biggest democracy, has failed to implement the fundamentals of data privacy so far. Time and again, Indian Government has missed to maintain confidentiality of database collected in the form of Aadhaar, etc. There have been several instances of data breaches in the recent past. In the recent report of Compritech’s Global Survey, India has been ranked as third worst for data privacy[10]. The survey ranks the countries on the basis of data enforcement, biometrics, etc.

The degrading position in terms of Global Surveillance Index necessitates the need to implement PDPB 2019 along with other sector-specific legislations like Disha which is delayed, year after year. Akin to India’s rise in “Ease of Doing Business” rankings, we do hope to see the rise of India in data privacy rankings as well.

* Bhumesh Verma is Managing Partner at Corp Comm Legal and can be contacted at bhumesh.verma@corpcommlegal.in.

Sayantan Dey, Legal & Compliance Professional and can be contacted at deysayantan59@gmail.com 

Shruti Jaju, 4th year student, Rajiv Gandhi National University of Law, Patiala.

[1] (2017) 10 SCC 1

[2] S. 3(21)of PDPB 2019

[3] S. 3(1)(e) of the DISHA.

[4] S. 3(1)(i) of the DISHA.

[5]Report available at: <https://enter-prise.verizon.com/resources/executivebriefs/2019-dbir-executive-brief-emea.pdf>.

[6] Preamble of DISHA

[7] S. 12 of the PDPB 2019

[8] S. 14(2) of the PDPB 2019

[9] https://pib.gov.in/Pressreleaseshare.aspx?PRID=1578929

[10]Global Surveillance Index, available at-<https://inc42.com/buzz/indiaranked-third-worst-for-data-privacy-incompritech-global-surveil-lance-index/>.

Case BriefsHigh Courts

Delhi High Court: Anup Jairam Bhambhani, J., while addressing a matrimonial dispute, observed that,

“the only criterion or test under Section 14 of Family Courts Act for a Family Court to admit, evidence is it’s subjective satisfaction that the evidence would assist it to deal effectually with the dispute.”

Divorce petition was filed by the husband/respondent on 26th September, 2012 seeking dissolution of marriage on the ground of cruelty under Section 13(1)(ia)of the Hindu Marriage Act, 1955.

As evidence, husband filed a Compact Disc (CD) in which he had recorded how the wife was talking a friend of hers about the husband’s family which clearly was derogatory, defamatory and constituted cruelty.

Recording of ‘private’ conversation without the knowledge or consent of wife is in breach of her fundamental right to privacy.

Wife while objecting to the said evidence stated that since the evidence comprised in the CD was collected in breach of her fundamental right to privacy, the same is not admissible in a court of law.

She further argued that a person is entitled to criticise someone and not share the criticism with the world; and that a person has a right to all thoughts and behavioural patterns within one’s zone of privacy.

Additionally it has been urged that the husband’s action of surreptitiously and clandestinely recording the wife’s telephone conversation with her friend also amounts to an offence under Section 354-D of the Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law.

Family Court’s opinion on the CD as evidence:

“This court is of the opinion that the conversation between the respondent and her friend, wherein, she has allegedly spoken about the petitioner/ his family and the status of the matrimonial life would, certainly assist the court in effectively deciding the dispute between the parties. Such a piece of evidence is certainly relevant.”

One of the earliest, leading decisions on the question of admissibility of tape-recorded conversations is Regina v. Maqsud Ali, (1966) 1 QB 688 where a secretly tape-recorded conversation was the only incriminating piece of evidence implicating the accused persons for murder.

Analysis and Conclusion

While a litigating party certainly has a right to privacy, that right must yield to the right of an opposing party to bring evidence it considers relevant to court, to prove its case.

Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.

In High Court’s opinion,

Legislature could not have enunciated it more clearly than to say that the Family Court “may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872.”

“…What credence, value or weightage is to be given to the evidence so received is discretionary upon the judge, when finally adjudicating the dispute.”

Without at all denigrating the importance of ethical and moral considerations, in the opinion of this court, to say that a Family Court should shut-out evidence at the very threshold on the basis of how it is collected, would be

(i) in breach of Section 14 which unequivocally expresses the intention of the Legislature ;

(ii) in breach of settled principles of evidence ; and

(iii) in breach of the enunciation by the Supreme Court that though the right to privacy is a fundamental right, it is not absolute and must be placed in the context of other rights and values.

Bench further observed that, in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties.

Thus, if Section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then Section 14 may as well be effaced from the statute.

In context of the present matter, Court stated that conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of Sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.

Though Court added to its conclusion that, if the right to adduce evidence collected by surreptitious means in a marital or family relationship is available without any qualification or consequences, it could potentially create havoc in people’s personal and family lives and thereby in the society at large.

While law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.

In view of the above, no infirmity is found in Family Court’s decision. [Deepti Kapur v. Kunal Julka, 2020 SCC OnLine Del 672 , decided on 30-06-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Samit Gopal, J., addressed a petition assailing the constitutional validity of Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020 and asked the State of Uttar Pardesh to file a response for the same.

Present petition was preferred to assail the constitutional validity of “The Uttar Pradesh Recovery of Damages to Public and Private Property Ordinance, 2020”.

Petitioner’s counsel submitted that Ordinance impugned deserves to be declared void being inconsistent with the provisions of Part-III of the Constitution of India. Citing the Supreme Court’s decision in Re: Destruction of Public & Private Properties v. State of A.P., (2009) 5 SCC 212, stated that a person is having a fundamental right to privacy. Such valuable right shall be seriously infringed by operation of the Ordinance of 2020.

Further, provisions of the Ordinance shall allow the persons to be viral for public at large as criminal without their adjudication for any criminal charge. The above stated Ordinance is also in contravention of Supreme Court’s decision in Rojer Mathew v. South Indian Bank Ltd., 2019 SCC Online SC 1456.

Adding to the above, it was emphasized that the intention of the Ordinance is only to frustrate and overrule the law laid down by a Division Bench of this Court In-Re Banners Placed on Road Side In The City of Lucknow v. State of Uttar Pradesh (PIL No. 532 of 2020), decided on 9-03-2020.

Bench in view of the above considered it appropriate to have adequate response of the State of Uttar Pradesh by a counter affidavit on or before 25-03-2020.

The case has been listed for 27-03-2020. [Shashank Shri Tripathi v. State of U.P., PIL No. 547 of 2020, decided on 18-03-2020]

Case BriefsHigh Courts

Allahabad High Court: A Division Bench of Govind Mathur, CJ and Ramesh Sinha, J. directed the District Magistrate, Lucknow and the Commissioner of Police, Lucknow Commissionerate, Lucknow to remove the banners from the roadside containing personal data of individuals who were accused of destroying the public property during Anti-CAA Protests in December 2019.

Privacy is a fundamental human right recognized in the United Nations Declaration of Human Rights. In our country, where privacy is not explicitly recognized as funamental right in the constitution, the Courts have found such right protected as an intrinsic part of life and personal liberty under Article 21 of the Constitution of India.

In the present public interest writ, undertaken by the Court at its own, simple question is, the legitimacy of the display of photographs, name and address of certain persons by the district administration and police administration of the Lucknow through banners. It has been further stated that, banners came up at a major roadside with personal details of more than 50 persons accused of vandalism during a protest in December, 2019. 

Chief Justice of this Court on noticing the injury to right to privacy, directed the registry to register a petition for the writ in public interest.

The main issue about the unwarranted interference in the privacy of people, it would be appropriate to state that admittedly no statutory provisions in that regard were available with the State.

Supreme Court in Malak Singh v. State of Punjab and Haryana, (1981) 1 SCC 420 held that even for history sheeters who have the necessary criminal history the information about the history sheet and the surveillance has to be kept discreet and confidential that cannot be shared with public and there is no question of posting the photographs of history sheeters even at police stations.

Bench stated that, on scaling, the act of the State, there was no necessity required for a democratic society for a legitimate aim to have the publication of personal data and identity.

Thus, in entirety, the action of the State was an unwarranted interference in the privacy of people and the same in violation of Article 21 of the Constitution of India.[In-Re Banners Placed On Road Side In the City of Lucknow v. State of U.P.,  2020 SCC OnLine All 244, decided on 09-03-2020]

Case BriefsHigh Courts

Two Finger test Held — Unconstitutional

Gujarat High Court: A Division Bench of J.B. Pardiwala and Bhargav D. Karia, JJ., while deciding  the two clubbed appeals, held that,

“Two-finger test is unconstitutional. It violates the right of the victim to privacy, physical and mental integrity and dignity.”

Court while analysing the present set of appeals stated that, it is a very unique acquittal appeal.

In the present case, two appeals have been combined.

The accused has been convicted for the offences punishable under Sections 366 and 363 of the Penal Code, 1860. Trial Court acquitted the accused for the charge of rape under Section 376 of IPC.

Prosecutions’ Case

While the victim was on her way to answer nature’s call early in the morning, she was hit by the accused with a weapon and forcefully taken away by him. While the victim was in custody and confinement of the accused, she was ravished forcefully.

It has been stated that the victim went missing on 26-03-1994, but the FIR lodged by the mother was on 10-04-1994. Further, the investigation revealed that the victim was confined at the house of the brother of the accused. Once the accused was arrested by the police at the stated place, the victim and the accused were thereafter sent for medical examination.

Through the birth certificates and other relevant documents, it was found that the victim was a minor at the date of the alleged offence, i.e. she was less than 16 years of age.

On noting the oral and documentary evidence, the trial court held the accused guilty of offences punishable under Sections 363 and 366 of Penal Code, 1860. But the trial court acquitted the accused of the charge of rape under Section 376 IPC on an erroneous assumption that the victim was major on the said date of offence.

Analysis of the Court

As stated earlier, the Court found the present set of appeals as a very “unique acquittal appeal”.

It was noted that, at the time when the trial court heard the prosecution and the defence on the point of the sentence that the trial court realised that it had committed a mistake in calculating the age of the victim. Trial Court acknowledged its mistake, but declined to do anything in the matter, as the order of acquittal was already pronounced.

Point about the “Two-Finger Test”

Court noted very disturbing contents in the medical certificate of the victim, wherein it appeared that in the course of the medical examination, the two-finger test was conducted.

“The two-finger test also known as the PV (Per Vaginal) refers to an intrusive physical examination of a woman’s vagina to figure out the laxity of vaginal muscles and whether the hymen is distensible or not. In this, the doctor puts two fingers inside the woman’s vagina and the ease with which the fingers penetrate her are assumed to be in direct proportion to her sexual experience. Thus, if the fingers slide in easily the woman is presumed to be sexually active and if the fingers fail to penetrate or find difficulty in penetrating, then it is presumed that she has her hymen intact, which is a proof of her being a virgin.”

Adding to the above, Court also stated that the two-finger test is one of the most unscientific methods of examination that is used in the context of sexual assault and has no forensic value. Section 155 of the Indian Evidence Act, does not allow a rape victim’s credibility to be compromised.

To add to the analysis, Court while placing their concern with regard to the “two-finger test” also stated that,

“Medical procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading treatment and health should be of paramount consideration while dealing with gender-based violence.”

Referring to the Supreme Court case in, Lillu v. State of Haryana, (2013) 14 SCC 643, wherein it was held that,

“…A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position of a woman, i.e. her dignity, honour, reputation and chastity.”

 “…two-finger test and its interpretation violates the right of rape survivors to privacy, physical and mental integrity and dignity.”

 Learned APP, submitted he is not sure whether the State of Gujarat has issued any directions to do away with the Per-Vaginum examination – Two-Finger Test.

 Endeavour is to remind the trial courts as well as the medical fraternity that the “two-finger test” is unconstitutional, as it violates the right of the victim of sexual assault to privacy, physical and mental integrity and dignity.

Further, the Court found the only question for consideration,

“Whether the trial court committed any error in holding the accused guilty of the offence of kidnapping punishable under Section 366 IPC and acquitting the accused of the offence of rape punishable under Section 376 IPC?

 For the above, High Court stated that, in case if the victim was a consenting party and had some relations with the accused, there is no escape from the fact that the victim was minor.

Once the victim is found to be a minor at the time of commission of offence, more particularly, when it comes to the offence of rape, the accused cannot plead in his defence that the victim was a consenting party.

Conclusion

High Court on perusal of the above stated that unfortunately, the trial court realised its mistake at a very late stage and in such circumstances, the trial court found itself in a helpless situation as it could not have reviewed its order of erroneous acquittal or illegal acquittal so far as the offence of rape was concerned.

Thus, the High Court held the accused to be guilty of the offence of rape punishable under Section 376 of IPC. Conviction appeal preferred by the accused should fail and the acquittal appeal preferred by the State of Gujarat should succeed.  [State of Gujarat v. Rameshchandra Rambhai Panchal, 2020 SCC OnLine Guj 114, decided on 17-01-2020]

Case BriefsSupreme Court (Constitution Benches)

Supreme Court: In yet another historic verdict, the 5-judge constitution Bench of Ranjan Gogoi, CJ and NV Ramana, Dr. DY Chandrachud, Deepak Gupta and Sanjiv Khanna, JJ has held that the office of the Chief Justice of India comes under the purview of the Right to Information. In the 250-pages long judgment, Justice Sanjiv Khanna wrote the mjority opinion for the Bench and Justices NV Ramana and DY Chandrachud gave separate but concurring opinion.

Majority Verdict penned by Sanjiv Khanna, J

“Judicial independence and accountability go hand in hand as accountability ensures, and is a facet of judicial independence.”

Section 8(1)(j) vis-à-vis Section 11 of the RTI Act

Section 8(1)(j) specifically refers to invasion of the right to privacy of an individual and excludes from disclosure information that would cause unwarranted invasion of privacy of such individual, unless the disclosure would satisfy the larger public interest test. This clause also draws a distinction in its treatment of personal information, whereby disclosure of such information is exempted if such information has no relation to public activity or interest.

On the relative scope of both the provisions, the Court said,

“the scope of ‘information’ under Section 11 is much broader than that of clause (j) to Section 8 (1), as it could include information that is personal as well as information that concerns the government and its working, among others, which relates to or is supplied by a third party and treated as confidential. Third-party could include any individual, natural or juristic entity including the public authority.”

Public Interest Test

The Court said that the public interest test in the context of the RTI Act would mean reflecting upon the object and purpose behind the right to information, the right to privacy and consequences of invasion, and breach of confidentiality and possible harm and injury that would be caused to the third party, with reference to a particular information and the person.

Some of the important aspects highlighted by the Court are as follows:

    • Public interest has no relationship and is not connected with the number of individuals adversely affected by the disclosure which may be small and insignificant in comparison to the substantial number of individuals wanting disclosure.
    • Public interest is not immutable and even time-gap may make a significant difference
    • The type and likelihood of harm to the public interest behind the exemption and public interest in disclosure would matter. The delicate balance requires identification of public interest behind each exemption and then cumulatively weighing the public interest in accepting or maintaining the exemption(s) to deny information in a particular case against the public interest in disclosure in that particular case.
    • ‘Motive’ and ‘purpose’ for making the request for information is irrelevant and being extraneous cannot be a ground for refusing the information. However, this is not to state that ‘motive’ and ‘purpose’ may not be relevant factor while applying the public interest test in case of qualified exemptions governed by the public interest test.

Judicial Independence

The independence of judiciary is not limited to judicial appointments to the Supreme Court and the High Courts, as it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It consists of many dimensions including fearlessness from other power centres, social, economic and political, freedom from prejudices acquired and nurtured by the class to which the judges belong and the like.

The Court said that it cannot be doubted and debated that the independence of the judiciary is a matter of ennobled public concern and directly relates to public welfare and would be one of the factors to be taken into account in weighing and applying the public interest test. Thus, when the public interest demands the disclosure of information, judicial independence has to be kept in mind while deciding the question of exercise of discretion. It, however, said,

“we should not be understood to mean that the independence of the judiciary can be achieved only by denial of access to information. Independence in a given case may well demand openness and transparency by furnishing the information.”

The Court concluded by saying that in each case, the public interest test would be applied to weigh the scales and on balance determine whether information should be furnished or would be exempt. Therefore, a universal affirmative or negative answer is not possible. However, independence of judiciary is a matter of public interest.

Delhi High Court’s Judgment

The Court upheld the 2010 Delhi High Court verdict where it had directed the CPIO, Supreme Court of India to furnish information on the judges of the Supreme Court who had declared their assets. The Court said that such disclosure would not, in any way, impinge upon the personal information and right to privacy of the judges.

NV Ramana, J’s separate but concurring opinion

“Right to information should not be allowed to be used as a tool of surveillance to scuttle effective functioning of judiciary.”

Stating that transparency cannot be allowed to run to its absolute, considering the fact that efficiency is equally important principle to be taken into fold, Justice Ramana talked about a 2-step process to ascertain whether the information should be disclosed. He laid down non-exhaustive lists of considerations that need to be considered while assessing both the steps

First Step: Whether information is private or not

  • The nature of information.
  • Impact on private life.
  • Improper conduct.
  • Criminality
  • Place where the activity occurred or the information was found.
  • Attributes of claimants such as being a public figure, a minor etc and their reputation.
  • Absence of consent.
  • Circumstances and purposes for which the information came into the hands of the publishers.
  • Effect on the claimant.
  • Intrusion’s nature and purpose

Second step: Whether the public interest justifies discloser of such information under Section 8(1)(j) of the RTI Act

  • Nature and content of the information
  • Consequences of non-disclosure; dangers and benefits to public
  • Type of confidential obligation.
  • Beliefs of the confidant; reasonable suspicion
  • Party to whom information is disclosed
  • Manner in which information acquired
  • Public and private interests
  • Freedom of expression and proportionality.

Chandrachud, J’s separate but concurring opinion

“To use judicial independence as a plea to refuse accountability is fallacious. Independence is secured by accountability. Transparency and scrutiny are instruments to secure accountability.”

Though Chandrachud, J noticed that to be independent a judge must have the ability to decide ‘without fear or favour, affection or ill will’ and that the Constitution creates conditions to secure the independence of judges by setting out provisions to govern appointments, tenure and conditions of service, he, however, said

“But constitutional design must be realised through the actual working of its functionaries. Mechanisms which facilitate independence are hence a crucial link in ensuring that constitutional design translates into the realisation of judicial independence. Facilitative mechanisms include those which promote transparency. For true judicial independence is not a shield to protect wrong doing but an instrument to secure the fulfilment of those constitutional values which an independent judiciary is tasked to achieve.”

He further said that the judiciary, like other institutions envisaged by the Constitution, is essentially a human institution. The independence of the judiciary was not envisaged to mean its insulation from the checks and balances that are inherent in the exercise of constitution power.

[Central Public Information Officer v. Subhash Chandra Agarwal, 2019 SCC OnLine SC 1459, decided on 13.11.2019]