right to privacy

Hot Off The PressNews

Supreme Court: While hearing Facebook Inc’s petition asking Supreme Court to hear all cases related to demands for linking Aadhaar to social media accounts and tracing the source of WhatsApp messages, the Court said that there has to be a balance between privacy and how to govern. The court, hence, issued notice to Facebook, Twitter, Google, YouTube, the centre and Tamil Nadu asking for their response by September 13 on whether the petitions should be transferred from high courts across India to the Supreme Court. Various cases are being heard by the high courts of Madras, Bombay and Madhya Pradesh and Orissa.

The Court said,

“There is a conflict between privacy and how the government should run the country when crimes are committed. There has to be a balance… under what condition information can be given and to whom,”

Facebook and WhatsApp, asking that all petitions be transferred to the top court, said it was a matter of high magnitude and affected the privacy of the entire nation.

On Monday, the Tamil Nadu government had told the Supreme Court that social media profiles of users need to be linked with Aadhaar numbers to check the circulation of fake, defamatory and pornographic content as also anti-national and terror material. However, Facebook Inc resisted the state’s suggestion on grounds that the sharing of the 12-digit Aadhaar number, the biometric unique identity, would violate privacy policy of users.

Facebook Inc said it cannot share the Aadhaar number with a third party as the content on its instant messaging WhatsApp was end-to-end encrypted and no one can access it.

The Tamil Nadu government, which is deep into a case related to the deadly Blue Whale game, argued that the centre was struggling to find out who the creator of the game was and who gives directions. Attorney General KK Venugopal, representing Tamil Nadu, said,

“Someone says he is a young person from Russia. A number of people have died in India playing the Blue Whale. Let the Madras High Court continue with its hearing,”

The Supreme Court said,

“We are aware of Blue Whale. What is happening in dark web is worse than Blue Whale. The idea of the Madras High court expanding the issue was that if need be, shouldn’t the intermediary inform the police about details of person for crime detection? We are not examining the merits of the case, only dealing with the transfer of the cases to the Supreme Court.”

(Source: NDTV)

Case BriefsHigh Courts

Kerala High Court: A Division Bench of CJ Hrishikesh Roy and A.K. Jayashankaran Nambiar, J. opined that the students could not be compelled to continue in a college which according to their perception was detrimental to their career and laid that there was no reason to interfere with the judgment of the single Judge whereby students were allowed the inter-college transfer.

Respondent student sought inter-collegiate transfer from the Cochin Institute of Science and Technology to another self-financing college under the same university since the amenities and infrastructure in his college were inadequate. But the college principal did not accord permission for the inter-college transfer. Thus, the respondent herein had filed a petition before this Court and a Single Judge Bench[1] allowed the same holding that college could not arbitrarily reject issuance of NOC to students desirous of taking admission into another college/ institute. Aggrieved by the said decision, the appellant-college preferred the instant appeal.

The counsel for the appellant, Anoop V. Nair and M.S. Sandeep Sudhakaran contended that if such inter-college transfer was permitted, the functioning of the appellant college would itself be put to jeopardy as it might possibly adversely impact those opting to continue in the Cochin Institute of Science and Technology.

The Court relied on the judgment of Supreme Court in the case of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, in which it was held that the right of a person to individual autonomy was matter of personal choice and preferences were integral to his dignity and thereby it was his fundamental right under Article 21 of the Constitution of India. It remarked that “freedom to choose the college of his/her choice for pursuit of their studies is according to us, an aspect of the Fundamental Right to privacy, guaranteed under Article 21 of the Constitution.”

The Court held that the appellants had not been able to show any condition either statutory or contractual which obliged a student admitted to their college to necessarily continue their course of study in the same institution and therefore when a student felt that he could secure better education in another college and there was no legal bar in exercise of such option, appellants could not compel the students to continue their curriculum from the same college. Hence, the Court dismissed the appeals for being devoid of merit.[Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800, decided on 04-06-2019]

[1] https://blog.scconline.com/post/2019/06/12/ker-hc-college-cannot-arbitrarily-reject-issuance-of-noc-to-students-desirous-of-taking-admission-into-another-college-institute/

Case BriefsHigh Courts

“Transparency of information is vital in curbing corruption. The approach of the court must be to attenuate the area of secrecy as much as possible consistently with the requirement of public interest.”

 Kerala High Court: The Division Bench of V. Chitambaresh and R. Narayana Pisharadi, JJ. dismissed an appeal filed by a co-operative society against an order directing furnishing of information sought under the Right to Information Act, 2005.

Appellant – an agricultural development bank – was incorporated under the provisions of the Kerala Co-operative Societies Act, 1969. Respondent’s 4 and 5 sought certain information from the respondent 1 under the RTI Act relating to grant of loans and expenses incurred by the appellant in connection with the cases instituted with regard to certain loan transactions. Appellant was directed by first respondent to furnish the required information to the respondent’s 4 and 5. The said order was challenged in a writ petition wherein the learned Single Judge directed 1st respondent to hear the appellant and 4th respondent and any other interested party before furnishing information to the applicants.

Appellant’s contentions were: (i) that it is not a public authority under RTI Act and thus not liable to furnish the information, and (ii) that the first respondent had no authority to collect information from the appellant, and to furnish such information to respondent’s 4 and 5.

The Court noted that being a cooperative society, appellant was not a ‘public authority’ under Section 2(h) of the RTI Act. Hence, it was not legally obliged to furnish any information sought for by a citizen under RTI Act. However, placing reliance on Thalappalam Service Co-operative Bank Limited v. State of Kerala, (2013) 16 SCC 82 it was opined that Registrar of Cooperative Societies can collect such information from the appellant which he is otherwise empowered to collect under the Kerala Cooperative Societies Act, and furnish that information to the applicant, subject to the restrictions under Section 8 of the RTI Act.

It was observed that the appellant’s case was not that it has no obligation under the Kerala Co-operative Societies Act to provide the information sought for. The right to privacy of a third party was protected by the direction issued by the learned Single Judge to hear the appellant and other interested persons before furnishing the information to the applicants. In view thereof, the writ appeal was dismissed.[Kunnathunad Taluk Primary Co-Operative Agricultural and Rural Development Bank Ltd. v. Registrar of Co-Operative Societies, 2019 SCC OnLine Ker 726, Order dated 26-02-2019]

Case BriefsForeign Courts

Constitutional Court of South Africa: A 10-Judge Bench comprising of Zondo, ACJ., Cameron, Froneman, Jafta, Madlanga, Mhlantla, Theron, JJ., Kathree-Setiloane, Kollapen, Zondi, AJ., unanimously declared private use of cannabis a matter of privacy and thereby appeal was dismissed.

 The facts of the case are that High Court gave an order due to which Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992 read with Part III of Schedule 2 to the Drugs Act and Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act,1965 and Section 22A(10) read with Schedule 7 of GN R509, 2003 were declared to be constitutionally invalid. The above provisions prohibited an adult person to use, possess, purchase, cultivate cannabis for personal consumption and thus was declared as constitutionally invalid on the reasoning that it was against the right to privacy guaranteed under Section 14 of the Constitution.

Applicant State submitted that it is in public interest that the restriction is put for the health, safety and psychological well-being of cannabis users whereas respondent agreed to the invalidation of impugned provision. Further High Court suspended its declaration until parliament corrects the defects as pointed out in its order. Constitutional Court was of the view that High Court was not competent to suspend its declaration as the declaration was not yet confirmed by the Constitutional Court as is required under Article 172(2) of the Constitution of Republic of South Africa. On the question of infringement of right to privacy the Constitutional court found that the right to privacy of adults to use etc. in private was limited by these provisions.

Constitutional Court came to the conclusion that the prohibition on privately involving in any activity which is related to cannabis cultivation by an adult for personal consumption was not in consonance with right to privacy as entrenched in the Constitution and was constitutionally invalid. Since constitutional invalidity declared by High Court was being affirmed by the Constitutional Court this order of invalidity was suspended for the parliament to correct the constitutional defects as pointed by this court in the impugned provision. Therefore, this appeal was dismissed. [Minister of Justice and Constitutional Development v. Prince, Case CCT 108 of 17, decided on 16-09-2018]

Conference/Seminars/LecturesLaw School News

CONCEPT NOTE: Humans are born with certain basic rights that are recognised in a civilised society. Some rights are inherent and some are incidental to human personality. Right to life, liberty and dignity are basic ones. Citizens, in a society driven by democratic and republican values, constitute a central part in the governance. There are situations where an individual in a free society expects to be free from the shackles of the governance and there comes the expectation of privacy so far as personal, private and intimate affairs are concerned. Many legal systems in the world, including couple of international legal instruments have also documented concerns for privacy, in the personal affairs of the individual. However,  there  exist  two  schools  of  thought,  one  concerning about basic rights of individuals such as food, shelter, livelihood, right to life etc. which recognises the privacy as “elitists” concept and the second, considers it as essential for the “human dignity” and  “human  personality”.  The  “Privacy  Jurisprudence” is a seven decade old and has been highly debated. Earlier Supreme Court rulings in M.P. Sharma v. Satish Chandra, DM, Delhi (1954) and Kharak Singh v. State of UP (1962), have rejected the right to privacy as fundamental right, under Article 21 of the Indian Constitution. However, the legal controversy was put to rest only last year, when a nine-Judge Bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1 have unanimously agreed that right to privacy is fundamental right under Article 21. The judgement is historic and unprecedented in India. A legal challenge to Aadhar Act, may be decided by the Supreme Court of India, in the light of the said landmark ruling.

The National Seminar, 2018 on “ Right to Privacy in the Contemporary Legal Environment” will have a technical and detailed deliberations on the legal implications of the latest ruling of Supreme Court of India. The National Seminar, 2018 will witness the presence of legal fraternity and the students of law. Several new facets and themes will be explored in the form of research papers to be presented by the participants. National Seminar, 2018 will also witness presentations  and  deliberations  by  the  Experts and Jurists on the subject.

Track 1: Public Law, State and The Privacy

  • Right  to  be  forgotten,  Right  to  be  let  alone  vis-a-vis  Right  to Privacy
  • Right to Privacy as Fundamental Right
  • Right to Privacy in the light of Aadhar Act and the UIDA database
  • Right to Privacy: an “elitists” concept or part of “liberty”?
  • Right to Privacy vs. National Security
  • Justice K.S. Puttuswamy (Retd.) v. Union of India (2017) 10 SCC 1
  • State Surveillance and Right to Privacy

Track 2: Right to Privacy & Cyberspace

  • Right to Informational Privacy
  • Data Protection Law and Right to Privacy
  • Right to Privacy in the age of Social Networking Sites and Messaging Apps
  • Legal  liability  of  Body  Corporates  under  Information Technology Act, 2000
  • Violation and Breach of Privacy under Information Technology Act, 2000

Track  3:  Right  to Privacy – Marriage, Conjugal Affairs, Intimacy, Reproductive Choices and Sexual Orientation

  • Right to Privacy in the institution of Marriage – Conjugal Affairs and Restitution of Conjugal Rights
  • Privacy and Rights of LGBT people – Legal Concerns and Issues
  • Privacy concerns in Surrogacy, DNA Tests, Reproductive choices and Sexual Orientation
  • Privacy concerns in Live-in Relationship

CALL FOR PAPERS: Research papers, case comment and articles are invited from the academic practitioners, research scholars and the students. The papers should be author’s original work and/or should not be any published work. Co-authorship is allowed but is restricted to only one. Selected research papers, case comments and articles will be published in the form of a Book with ISBN, which may be notified in due course of time to the participants. Publication of papers shall be subject to the approval of the Editorial Board and quality of the papers.

Last date for Abstract submission       –  September 15, 2018

Last date for Full Paper submission    –  October 5, 2018

Last date for Registration & Payment – September 30, 2018

Date of National Seminar, 2018          – October 20, 2018

CONTACT DETAILS: For any queries related to the 2nd National Seminar, 2018,  participants  may  contact following persons on the details given below:

Mr. Ashok P. Wadje (Asstt. Professor of Law) Convener, 2nd National Seminar, 2018 (Contact Number: +91 9650778117)

Mr. Divyanshu Goyal, Student Coordinator, 2nd National Seminar, 2018 (Contact number:+91 9309915776)

For submission of Abstract, Full Paper, Scanned copy of Payment Slip or DD and Registration Form and other queries, email ID is: seminarmnlua@gmail.com

To view the Brochure, click HERE

To download Registration Form, click HERE

For further details, click HERE

Case BriefsSupreme Court

Supreme Court: In a PIL filed by Trinamool Congress MLA Mahua Moitra challenging the decision of the Centre on creating a Social Media Communication Hub (SMCH) on the ground that it was an attempt on snooping the citizen’s social media activities in violation of their Right to Privacy under Article 21 of the Constitution of India, Supreme Court has issued a notice against the same.

The Bench comprising of S Abdul Nazeer and Indu Malhotra JJ. had addressed the said petition in which Moitra had accused the government of attempting to invade the privacy of citizens, which eventually violated the Right to Life guaranteed by the Constitution of India.

According to the tender document, the successful bidder will be required “to collect digital media chatter from all core social media platforms as well as digital platforms like news, blogs, and forums”.

Therefore, Supreme Court Bench headed by CJ Dipak Misra on hearing the petition filed earlier, today issued a notice against the “Social Media Communication Hub” that has been proposed by the central government and has sought the assistance of Attorney General KK Venugopal. The case is listed for further proceeding on 03-08-2018.  [Mahua Moitra v. Union of India,2018 SCC OnLine SC 697, order dated 13-07-2018]

Hot Off The PressNews

On Day 7 of the Aadhaar hearing, Senior Advocate Shyam Divan summed up his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ. Shyam Divan picked up from where he left on Day 6 i.e. arguing on the affidavit filed by a fieldworker on the Jharkhand NREGA program recounting starvation deaths that occurred in Jharkhand because of Aadhaar linking failures.

Below are the highlights from Day 7 of the hearing:

Submission on affidavit on exclusion of people with leprosy: 

  • Shyam Divan: The issues here pertain to exclusion, death, and dignity. The reports are about extreme situations. SD says that the basis point is that in a democracy, there has to be an element of choice. There can’t be just one method of identification imposed.
  • Chandrachud, J: One thing the Court needs to look at is the level of internet penetration in the country.
  • Shyam Divan:  The PoS machine has a memory, so if the internet fails, the machine is often taken to another place. All Aadhaar can do is stop a very limited kind of misuse (identity fraud), and there are other ways to weed out leakages.
  • Chandrachud, J: The affidavit seems to show that even after Aadhaar, the citizen remains dependant on the PDS dealer. While that argument may not furnish a constitutional ground, but the argument that Aadhaar itself is causing exclusion nay furnish a ground under Article 14.
  • Shyam Divan: Persons who cannot authenticate are treated as “ghosts”, and as mere statistics. He says this cannot meet the tests under Articles 14, 19, and 21. This is especially so because the system is coercive.

Submission on no option to opt out of Aadhaar scheme:

  • Shyam Divan: This is crucial from an informational self-determination point of view. There must be a right to opt-out. (Reads out affidavits from people who have asked to be able to opt-out, on the ground that there was no genuine informed consent at the time of enrolment and a collective affidavit from Meghalaya from people who want to opt-out of Aadhaar.)
  • Chandrachud, J: What is the position in the North-East?
  • Shyam Divan: There are places where the roll-out is low, and they have been exempted.
  • Shyam Divan reads out the affidavit of Rakesh Mohan Goel, a computer industry expert who went and audited enrolment centres. Below are the findings mentioned in the affidavit:
    • Computer Industry people were retaining biometrics and storing them, and the UIDAI had no way of knowing. 
    • The biometrics of Indians are available to private entities, can be and are being stored in logs.
    • Because of the architecture of Aadhaar, UIDAI has very little control over this.
    • There is no way of knowing, after an audit, whether the storage is continuing or has stopped.
  • Shyam Divan: When you part with something as precious as biometrics, there has to be a fiduciary relationship between you and the person taking it. How can you trust a system like this?
  • Chandrachud, J: How are the authentication machines purchased?
  • Shyam Divan: UIDAI has technical specifications, but the purchase is private. The point is that biometric data is easily compromisable. This is a reason why people do not want to be on Aadhaar, and why they should not be *mandated* to get into the system. While some of these leaks can be plugged, the basic design is faulty. In Surat, the biometric data of ration card holders was stored and then used to siphon off.
  • Shyam Divan (Discussing the mechanism of producing artificial fingerprints): The operator’s fingerprints are cloned. When UIDAI found this out, they added iris authentication. However, the hackers then found a way to bypass that as well. Cloning of fingerprints is easy and it’s possible, and it’s been done. What is the integrity of the system, and why should anyone trust this? This is a question of my right to protect my body and my identity. If the system is so insecure, why am I being mandated to authenticate through fingerprints for every transaction? The more the database expands, given that this is a probabilistic system, the more times you will have a match. This is indicative of exclusion, and that the system is saturated, leading to unjustified rejections.
  • Shyam Divan (Reading out Dr Reetika Khera‘s affidavit, who is an economist at IIT Delhi, and works on the NREGA. It speaks about biometric authentication failure at a tribal school, where those whose fingerprints were not recognised by Aadhaar, were not marked present): Firstly, these are not ghosts in the system. They are flesh and blood girls attending the school, and Aadhaar is not recognising them. Secondly, you’re creating records for an entire lifetime, starting from school. Is this not a surveillance society? Thirdly, there is no statutory sanction.
  • Sikri, J: In fact later, the teachers may be hauled up for inflating numbers.

Submission on whether an individual’s body belongs to her or to the State:

  • The question is, in a digital world, how do I exercise control over my body? In a liberal democratic culture, the basic value is the prohibition of slavery, which means that an individual’s body cannot be used for purposes that she does not endorse.
  • If a person exists in flesh and blood, where is the question of denying her anything? This is at the core of Article 21 and the relationship between the individual and the State. In a liberal democratic culture, can the State say that “I will choose to recognise you only in this manner, otherwise you cease to exist”?
  • There is no concept of eminent domain as far as the body is concerned. The body cannot be used as a marker for every service.
  • The State has a legitimate interest in identifying a person, and so there could be a set of limited, narrowly tailored circumstances where you are required to give up fingerprints, such as for a passport or a driving license or a criminal investigation.

Summary of Shyam Divan’s arguments: 

  • Personal autonomy: Are we going to cede complete control of the body to the State? In a digital world, personal autonomy extends to protecting biometrics.
  • Constitutional trust: We have created the State, and now the State trusts us as unworthy unless we cede our biometerics. The Aadhaar program treats the entire nation as presumptively criminal.
  • Rule of law: Look at how this project has been rolled out.
  • Surveillance and privacy
  • Domination of State:  If this program is allowed to roll on unimpeded, think of the domination The State will have over the individual.

Senior Advocate Kapil Sibal’s submissions:

  • Kapil Sibal: If the State wants Google to give information, it will have to get a court order. Aadhaar bypasses that safeguard. You have the right to opt-out of Google, FB, Twitter. There is no such right with respect to Aadhaar.
  • Chandrachud, J: This distinction may not be persuasive, because in today’s world, you have only notional consent even with respect to private players.
  • Kapil Sibal: There is an important distinction between the State and Google. There are open source alternatives to Google. And even within Google, I have choices and control. There is also a further qualitative distinction. Google uses your data and that often increases your choice. Aadhaar restricts it.
  • Kapil Sibal: How can Aadhaar Act, 2016 be a money bill?
  • Chandrachud, J: That link comes from the Consolidated Fund of India. (P. Chidambaram to argue on this point later)
  • Kapil Sibal (On deactivation of Aadhaar): Consider what will happen in the time that your Aadhaar is deactivated, and you’re trying to rectify it. This is unimplementable in a polity as large as ours. Think of how this will play out in rural India. He points to the regulation that allows deactivation for “any other reason deemed appropriate.” What kind of power is this? This is the power to cause civil and digital death.”
  • Chandrachud, J: You can’t judge the validity of an act by the potential for abuse.
  • Kapil Sibal: This is about how much power you are giving up to the State. In the information age, it’s not merely about “possibility” any more. It exists. (Reads out an article in the newspaper today that talks about digital payments being pushed to 1 trillion dollars in five years.)
  • Chandrachud, J: How does the Court decide what level of risk is proper or not? Should the Court get into this or should it be left to the legislature?
  • Kapil Sibal: I am not saying that the State will misuse it. But the information is in the public domain.
  • Sikri, J: What information will the bank have when you link your Aadhaar?
  • Kapil Sibal: Aadhaar has been used for banking frauds. Different principles need to be evolved in dealing with digital issues. The principles used to adjudicate other statutes don’t map with accuracy.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1, Day 2, Day 3, Day 4 , Day 5 and Day 6 of the hearing.

Source: twitter.com/gautambhatia88

Case BriefsSupreme Court

Supreme Court: In a landmark judgment that will remain law for years to come, the 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ has unanimously held:

“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”

In the 547-pages long judgment, Dr. D.Y. Chandrachud, J writing for himself and on behalf of J.S. Khehar, CJ, R.K. Agrawal and S.A. Nazeer, JJ, said that Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. He added,

“While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being”

On the aspect of Data Protection, he said:

“Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state like protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.”

He also addressed the issue of rights of the LGBT community in Suresh Kumar Koushal v NAZ foundation, (2014) 1 SCC 1, where it was held that the prosecution of a miniscule fraction of the country’s population in 150 years cannot be made sound basis for declaring that section 377 IPC ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. Stating that the guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion, he said:

“Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

All the remaining judges wrote separate but concurring judgments. Chelameswar, J, in his judgement, said:

“All liberal democracies believe that the State should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being.”

He, however, added that every right has limitations and the options canvassed for limiting the right to privacy should include: (a) Article 14 type reasonableness enquiry; (b) limitation as per the express provisions of Article 19; (c) a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21; and (d) a just, fair and reasonable standard per Article 21 plus the amorphous standard of ‘compelling state interest’, the last one being the highest standard of scrutiny.

Bobde, J, in his judgment, explained the test of privacy and said that privacy may be understood as the antonym of publicity. Giving examples, he wrote:

“taking one or more persons aside to converse at a whisper even in a public place would clearly signal a claim to privacy, just as broadcasting one’s words by a loudspeaker would signal the opposite intent.”

Nariman, J, discussed the law laid down in ADM, Jabalpur v. Sivakant Shukla, (1976) 2 SCC 521 and said that after this judgment it will be clear that the majority judgment in the said case is no longer good law and that Khanna, J.’s dissent is the correct version of the law. He noted that:

“the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered. By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21. On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.”

On the importance of declaring privacy as a fundamental right, he said:

“Statutory law can be made and also unmade by a simple Parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes. Fundamental rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.”

Sapre, J, wrote the right to privacy emanates from the two expressions of the Preamble namely, “liberty of thought, expression, belief, faith and worship” and “Fraternity assuring the dignity of the individual“ and also emanating from Article 19 (1)(a) which gives to every citizen “a freedom of speech and expression” and further emanating from Article 19(1)(d) which gives to every citizen “a right to move freely throughout the territory of India” and lastly, emanating from the expression “personal liberty” under Article 21. He also added:

“the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.”

SK Kaul, J, on ADM Jabalpur judgment, said that it was an aberration in the constitutional jurisprudence of our country and it should be overruled as there is

“the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”

Stating that declaring right to privacy as a fundamental right is a call of today, he said:

“In an era where there are wide, varied, social and cultural norms and more so in a country like ours which prides itself on its diversity, privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.”

All the judges unanimously overruled the law laid down in  M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P and said that all the decisions after the Kharak Singh case where it has been held that Privacy is fundamental right, lay down the correct position in law. [Justice KS Puttaswamy v. Union of India, 2017 SCC OnLine SC 996, decided on 24.08.2018]

Hot Off The PressNews

Supreme Court: In the landmark verdict, the 9-judge Constitution bench has declared that the Right to Privacy is a part of Article 21 & Part III of the Constitution. CJI Khehar, who had not authored the unanimous judgment but read it before a jampacked courtroom, said that MP Sharma case, Kharak Singh Case & any other judgments that say that privacy is not a fundamental right are overruled.

The bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ being a part of fundamental rights or not after the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & S.A. Nazeer, JJ said that in the light of the rulings by the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., holding that Right to Privacy is not a fundamental right, a larger bench needs to decide the issue.

Read the highlights of the hearing, here.

Read the details from the hearing, here.

Detailed report to follow.

OP. ED.

The 9-judge bench Right to Privacy hearing came to end and the whole country is now waiting for the judgment to be out, some in anticipation of their rights to be recognized and some hoping for a decision that will act as a firm standing for the Aadhaar scheme. Whichever side the Supreme Court picks, one cannot deny the fact that this 6-day long hearing was one of the biggest hearings that the World has witnessed lately and whatever these 9-judges decide, is going to be a law for a long time.  To put things into perspective, this 9-judge bench was formed in the year 2017 to decide the correctness of a law that was laid down in the year 1954. Stakes are high and neither of the parties took it lightly. While some arguments gained applaud, some managed to raise a few eyebrows. Let’s look back at some of the important highlights from the hearing.

  • Privacy as a Fundamental Right without defining contours

Petitioners argued that Privacy is the very essence of liberty. It is not only a fundamental right but an inalienable right. MP Sharma and Kharak Singh cases deal with only single aspect of privacy and the Court needs to declare a broader Right to Privacy as a Fundamental right. If that is not done, all other rights will have no meaning. Dr. D.Y. Chandrachud, J showed some concern over the possible effects of declaring Right to Privacy as a Fundamental Right without defining any contours. He said that it might make the Naz Foundation judgment on Section 377 IPC vulnerable.

  • Dark Web doesn’t justify State actions

S.A. Bobde, J quizzed the petitioners on dark web to which the Petitioners responded by saying that there is no denying that 80% of the internet is Dark Web but that cannot justify State’s actions in violation of privacy. This cannot have any bearing on the recognition of the right.

  • No Fundamental Right to Privacy = Misuse by State

Petitioners put forth the concerns over possible misuse of power by the Government if Right to Privacy is not recognized as Fundamental Right. It was contended that in this digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case. The delay in recognizing Right to Privacy by the Courts has resulted into the collection of the biometric data of all the citizens of the country in the name of Aadhaar. It was argued that the Government suspended the rights of the people during emergency and it wants to do the same today even in the absence of emergency.

  • Privacy is vague; has many aspects

State based it’s argument of the vagueness of the definition of Privacy. It was contended that since there is no clear definition of privacy, it cannot be elevated to Fundamental Right. It was also submitted that most of the aspects of privacy were already protected under Article 21 of the Constitution and that there was no need to declare Privacy as a fundamental right and asked the Court to define privacy on cases-to-case basis. It was argued that privacy was only a civil right and such rights were deliberately left out by the framers of the Constitution.

  • State’s notion of Privacy in a Poor or Developing nation like India

Centre argued that there should be no fundamental right to privacy in a developing nation. State of Maharashtra also took a strong stand against fundamental right to privacy and said Aadhaar is important for subsidy schemes and if asked to choose between subsidized food and private information coming out, people will choose food.

  • Privacy norms in other Countries

State argued that there were different norms of privacy in different countries and India’s definition of privacy is much different. One example of this difference that was quoted before the Court was of Public Display of Affection that was allowed in the US, to which Dr. D. Y. Chandrachud responded by saying that this means that Indians were more private and needed right to privacy.

  • Effect of recognizing Fundamental Right to Privacy on existing laws

State showed it’s apprehension towards the possible effect of declaring Right to Privacy as a Fundamental Right to Privacy by saying that there are Rules that say that compound walls can only be three feet or so and the Court will be flooded with the cases challenging such laws. J Chelameswar, J asked the State to calm down and said that declaring privacy as a fundamental right will not mean that every regulation will be struck down.

  • Right to be left alone

State submitted that privacy was nothing but a formal name for right to be left alone and that right has already been recognized as a part of liberty.

  • States in favour of Fundamental Right to Privacy

States of Karnataka, West Bengal, Punjab, Kerala and Puducherry argued in favour of fundamental right to privacy and said that there can be no liberty without privacy. Kapil Sibal, appearing for 4 out of 5 States, in rejoinder said that he had little faith on the Parliament and that the Court should decide the matter.

  • Aadhaar vis-à-vis Data Protection

Even though the Court had made it clear that it will only decide the issue relating to Right to Privacy and will not go into the merits of Aadhaar, State defended the Aadhaar Scheme during the hearing. This resulted into questioning by the Court on the Data Protection measures under the Aadhaar Act, 2016. State replied by saying that Section 29 of the Act prohibits disclosure of core biometrics. The Court seemed unimpressed and said that a robust mechanism was required.

  • Aadhaar’s survival chances

While the Court said that it will give a comprehensive judgment on right to privacy for the conceptual clarity of the nation, it also hinted that the judgment will not have a major impact on the Aadhaar Scheme. Upon witnessing the apprehension of the State, R.F. Nariman, J said that the Court was not saying that it will repeal Aadhaar. It will try to balance Aadhaar with right to privacy. All said and done, though there is strong change that the Supreme Court might recognize Right to Privacy, the Aadhaar Scheme, that prompted this great debate, will survive.

 

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

 

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The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017 and today was the 4th day of hearing. Petitioners had already concluded their arguments on 20.07.2017. Here are the 15 biggest takeaways from the Union and States’ submissions till now:

  1. Senior Advocate Kapil Sibal: Privacy is not an absolute right. Will never be. The Court will have to strike a balance. You should not lay down the law but just to hold the existence of the inalienable inherent right.
  2. Attorney General KK Venugopal: Privacy can be one of the species of personal liberty. This right of privacy consists of a large number of sub-species. All these sub species cannot be elevated to the level of a fundamental right.
  3. Dr. D.Y. Chandrachud, J: If we say privacy is not a Fundamental Right at all it would be a blanket sanction of anything the State can do.
  4. It’s preposterous to state that India will become totalitarian because of Aadhaar. Privacy claims require better priority in developed countries. In a developing country there should be no Fundamental Right to privacy.
  5. Dr. D.Y. Chandrachud, J: Privacy is not an elitist concern and it is equally applicable to the large masses. For example if State wants forced sterilization on slum dwellers for population control among that group, perhaps only privacy claim may stand in the way.
  6. Attorney General KK Venugopal: World Bank has said that something like Aadhaar should be followed by all countries. Article 21 includes right to live with dignity I.e also to basic needs such as food reasonable environment, suitable accommodation etc. An Act passed with those salutary objects cannot be defeated on claims to privacy.
  7. J. Chelameswar, J: There is not data protection n Aadhaar. The moment you put fingerprint whole world has the data access.
  8. Attorney General KK Venugopal: Section 29 of the Act provides for prohibition of disclosure of core biometrics.
  9.  Dr. D.Y. Chandrachud, J: Where is the protection for the mobile number? Why medical history is excluded from definition of demographic info and why they are not protected? There is no robust data protection mechanism.
  10. S.A. Bobde and R.F. Nariman, JJ (To Tushar Mehta appearing for UIDIA) : So you have enacted this to protect privacy! Then why are you disputing the right.
  11. Attorney General KK Venugopal:The very fact that there is an Act passed to protect privacy means there is no Fundamental Rights.
  12. Senior Advocate C.A. Sundaram: There is no unambiguous definition of privacy to be crystallized as a right
  13. CJI and S.A. Bobde, J: Life, liberty and dignity are also not defined but they are all Fundamental Rights.
  14. Senior Advocate C.A. Sundaram: Law is set of rules by which society interacts. There are NDMC rules that compound walls can only be three feet. If privacy becomes Fundamental Right, all cases challenging such laws will come before the Court. Even if the bench were to hold the right, it will have to define it to some extent. Every Government action has an impact on privacy, therefore, a broad constitutional right to privacy must not be laid down.
  15. R.F. Nariman, J: We are going to consider all aspects and give a comprehensive judgment for conceptual clarity for the nation.

Looking for a cheat sheet for petitioners’ submissions? Click here.

Read the detailed submissions of both the sides here.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

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On 24.07.2017, it was notified that the Constitution Bench will not be sitting on 25.07.2017 in the light of the swearing in ceremony of the newly elected President. President-elect Ram Nath Kovind will be sworn in as the 14th President of India by the Chief Justice of India, Justice Jagdish singh Khehar and all the Courts will sit after the conclusion of the ceremony i.e. post-lunch.

The 9-judge constitution bench that is scheduled to hear the submissions of the Union of India will resume sitting on 26.07.2017.  Petitioners have already concluded there arguments.

Click here to read the 12 point cheat sheet to all that has happened in the case till date.

Hot Off The PressNews

Supreme Court: While the issue relating to ‘right to privacy’ is under consideration before a 9-judge bench, the Centre today told a 5-judge bench of Dipak Misra, Dr. A.K. Sikri, Amitava Roy, A.M. Khanwilkar and M.M. Shantanagouda, JJ  in the matter relating to Whatsapp data sharing with it’s parent company Facebook, that the data of users is integral to the right to life and personal liberty guaranteed under the Constitution and it would come out with regulations to protect it.

The submission of the Central Government is important in the light of the ongoing Aadhaar proceedings that prompted the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ to refer the ‘right to privacy’ matter to a 9-judge bench. The petitioners have vehemently argued before the 9-judge bench that ‘right to privacy’ should be declared as a fundamental right under Part III of the Constitution. The Union of India will be making it’s submissions in the matter on Tuesday. ‘Right to privacy’ has not been specifically recognised in the Constitution as a fundamental right and that is why the Court has interpreted the said right differently in different case.

Source: HT

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The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ since 19.07.2017. Here is a 12-point cheat sheet to the arguments advanced by the Petitioners:

  1. Senior Advocate Gopal Subaranium: Rights under Articles 14,19, 21 & 25 have an element of personal choice i.e. privacy. Privacy is not only a fundamental right, but an inalienable one.
  2. Senior Advocate Shyam Divan: Right to privacy is a global concern of the day. In a digital age, the dangers of not reading the right as a Part III of the Constitution right may be aggravated.
  3. Senior Advocate Arvind Datar: The proposition that privacy is not guaranteed under Constitution is not the law laid down by the MP Sharma & Kharak Singh cases.
  4. DY Chandrachud, J: If we just hold privacy is a right, Naz judgment may become vulnerable. (Also read, how this decision might affect the LGBT community)
  5. Senior Advocate Anand Grover: Please do not define privacy as it needs to be defined on case to case basis. You may, however, indicate the facets of privacy.
  6. DY Chandrachud, J: If a Government has a digitalized list of convicted criminals for its algorithmic analytics predictive models, etc it may not be a violation because state may have a legitimate interest. But it may be a violation if a whole segment of a population is tracked and profiled similarly.
  7. Senior Advocate Sajan Poovayya: Given the information explosion in the digital age, if not in Aadhaar, a data protection and privacy question would have risen in another case and perhaps before a 9 judge bench.
  8. A. Bobde, J: What about dark web? Isn’t 80% of internet dark?
  9. Senior Advocate Sajan Poovayya: But State cannot be a proponent of a dark web. State must first respect privacy. State has an obligation to protect citizens digital identity as much as physical identity. No less. The declaration that privacy is a fundamental right itself is the first step towards fulfilling that obligation of oversight on executive.
  10. Senior Advocate Sajan Poovayya: If you had declared the right to privacy as a fundamental right 15 years ago, the State would not have done what they have done with Aadhaar i.e. collect the biometric data of the entire citizenry in an executive fiat.
  11. Senior Advocate Meenakshi Arora: Right to Privacy is everywhere, even under Articles 17, 24 and 25.  You may sometimes be compelled to disclose certain information but you do have a right.
  12. Petitioners have concluded their arguments. Court will hear Centre’s submission of Tuesday i.e. 25.07.2017.

Also, here is a glimpse of how the Supreme Court has seen the Right to Privacy in the last 60 years and why a 9-judge bench had to step in to decide the issue.

OP. ED.

 “If we just hold privacy is a fundamental right, Naz judgment may become vulnerable”, Dr. D.Y. Chandrachud, J while hearing the issue of ‘right to privacy’.

On 18.07.2017, the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge Constitution bench as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right.

Chandrachud, J was a part of this 9-judge bench when he said that holding that ‘right to privacy’ is a fundamental might right will mean that the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, where it was held that Section 377 IPC does not violate a person’s right to privacy, will no more be a good law.

This one remark by Chandrachud, J on the first day of hearing is a silver lining for the LGBT community. If ‘right to privacy’ is declared to be a fundamental right, the decision will be binding on the bench hearing the curative petition in the Naz Foundation case.

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Supreme Court: The 9-judge bench of J.S. Khehar, CJ and J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer, JJ is hearing the issue of ‘right to privacy’ being a part of fundamental rights or not after the 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & S.A. Nazeer, JJ said that in the light of the rulings by the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., holding that Right to Privacy is not a fundamental right, a larger bench needs to decide the issue. Below is the update on the hearing on as it happened basis:

Day 6, 02.08.2017

  • Chandrachud, J: Where should we locate Right to Privacy under Constitution? Restricting it to Article 21 will narrow it’s scope.
  • Senior Advocate Rakesh Dwivedi (For Gujarat): Privacy aspects can be placed under Article 19 (1)(a) in which case it is integral to that right and if 19 (1)(a) is affected action can be maintained under that right and no new right is required.
  • Nariman, J: You are arguing majority of Kharak Singh, which is no longer good law. You should amend your written submissions to substitute Part III instead of just Article 21. (Rakesh Dwivedi agrees)
  • CJI: That will make your yesterday’s arguments frivolous.
  • Chandrachud, J:  There should be a gradated model where the protection may be weighed up in terms of the nature of publicness of information. India is an economic powerhouse because of 1.3 Billion people and their knowledge economy. Privacy must not stifle that economy. Extent  for State regulation may be broader in public places than in homes but there is no surrender of privacy.
  • Rakesh Dwivedi: In case of public health, health data needs to be collected documented and analysed.
  • Chandrachud, J:  But it cannot be collected and stored right down to an individual level all the time.
  • Nariman, J: In the gradation system, there can be different zones of privacy with home and body occupying the zone 0. The scope for State interests may be different for different zones but does not mean there is no Fundamental Right. (Rakesh Dwivedi disagrees, says there is no Fundamental Right)
  • Rakesh Dwivedi:
    • Whether or not privacy can be asserted needs to be based on the injury that a specific information disclosure will cause. It is not enough for some one to claim their privacy is violated. They need to show the nature of injury that may ensue due to that violation.
    • Liberty and dignity in preamble are narrow domains. Dignity has got nothing to do with privacy but only with fraternity. Economic and social justice precedes liberty under preamble. Even poor people’s life and liberty are important.
    • “Substantive due process” must be overruled by the 9-judge bench or clarified as it must be kept in mind due process was considered and rejected by the framers of the Constitution.
    • Privacy is a fading concept. There can be no claim of privacy as to basic identity information. Even Supreme Court Rules seek a lot of personal information and identity information including Aadhaar when PILs are filed. (CJI amused, Chandrachud, J clarifies that Aadhaar is optional.)
    • Privacy claims are only by those who do wrong.  (Chelameswar, J interrupts. Says it is not a question of right or wrong.)
    • We must make use of technology to the maximum.
  • Chandrachud, J: It may be that privacy as a practical notion is largely broken down but does not mean we destroy it as a constitutional notion. In fact it is more necessary now.
  • Rakesh Dwivedi: If you put fetters like limitation of purpose, etc, foreign powers like google will become more powerful that the Indian State.
  • Chelameswar, J:  Why are you so apprehensive? Just because privacy is a right it is not as if every regulation is going to be struck down.
  • Nariman, J: Entrusting data to State is not always same as putting it in public domain. If currently privacy is non existent, it is no ground to say it should not exist.
  • Rakesh Dwivedi: The limitation principle is impossible to implement. Even when taking data foreign servers may snoop data and analyse it. (Concludes his submissions)
  • Gopal Sankaranarayanan (for CCS India):
    • Some rights are for persons and some for citizens. Indeed all rights need to be read together but there are also grounds for separation because Article 19 is for citizens only and not for all persons.
    • MP Sharma and Kharak Singh are correctly decided. The contention that these cases did not talk about Fundamental Rights is wrong. ADM Jabalpur needs to be overruled as that is the only judgment which restrictively interpreted Fundamental Rights.
    • Consequences of elevating all aspects of privacy as Fundamental Rights will be problematic.
    • Norms of privacy are different in different countries. For example, prenatal sex detection is permitted in the US, medical termination jurisprudence is also different.
    • Most of the aspects of privacy are already protected under Article 21
    • If privacy is Fundamental Right, it cannot be waived and it will have a lot of implications including under Contract law. May be it is possible, that derivative rights of Privacy can be waived. (Discussing the doctrine of waiver and the confusion over it under the Indian jurisprudence)
    • The people offended by Aadhaar are those who don’t need the services. If the State ends up balancing such interests, it will lead to majoritarian rule, which is not what the Constitution is about. UDHR has relevance for Part IV and not Part III. (Concludes his arguments)
  • Arghya Sengupta (For Haryana and TRAI):
    • Purpose limitation test cannot be incorporated into the Constitution because it’s a matter of contract.
    • Thee nature of the right to privacy that exists is different depending upon the zone in which the act takes place. You have no right not to be spied on in public. Court should not read in a general fundamental right to privacy in the Constitution.
    • In the US, neither abortion nor same sex rights are adjudicated on the ground of privacy. All decisions in the US rely on liberty rather than privacy.
    • Right to be let alone is part of liberty. Privacy is only a formal construct. The core idea is that of liberty. There is no right to take drugs in your own house. If privacy is a right to be left alone, then there is a correlative duty upon others to stay off. There must be a case to case development “so-called privacy interests.” Context is everything and therefore there can be no general test. No new doctrine is required because existing liberty jurisprudence is enough.
    • Court should not get into the horizontal data protection as it is a complex problem. (Concludes his arguments. Nariman, J congratulates Gopal Sankaranarayanan and Arghya Sengupta for their forceful submissions)
  • Respondents conclude their arguments. Rejoinder begins 
  • Gopal Subramanium:
    • There’s no need to look at all the judgments of the US to ascertain where we stand in relation to our fundamental rights.
    • The words in our Constitution are not narrow. They are to be understood in their fullness.
    • The dissenting opinion in Kharak Singh infuses life into Article 21.
    • This Court in Kesavananda Bharati protected fundamental freedoms. The majority In Kesavananda Bharati referred to the atrocities of the Second World War (Talking about Nazi census). 
    • Gopalan’s approach to fundamental rights was followed by majority in Kharak Singh and by the dissent in Kesavananda Bharati.
    • What happened during the Emergency was a deprivation of privacy and liberty. We have no such declaration today, yet the Government wants liberty to be suspended.
    • You cannot divorce liberty from dignity. Bhagwati J helped South African Constitution. Their article 14 guarantees Privacy. Their Constitutional Courts says that privacy, liberty, dignity and freedom are all intertwined.
    • The selfhood of the person is at the core of this case.
  • Nariman J: To rich and poor alike.
  • Gopal Subramanium: To all. When you fuse Articles 14, 19, and 21, laws must be tested on all those bases. The State is the custodian of Constitution and must protect rights. This Court must continue to affirm for Constitution. (Concludes)
  • Kapil Sibal:
    • Each of us in this courtroom have persona, unique. Each of us have moments of solitude. Private moments. Where does my right to private moment comes from? Does the State confer it? Or is it part of our persona?
    • What I eat, What I say to my wife etc is my privacy.
    • Privacy and personal liberty are different. Privacy needs to be protected because it is at the heart of diversity. Privacy is the golden thread that runs through liberty. There can be no liberty without privacy.
  • Chandrachud, J: Then what does privacy add to the Constitution? Is it only a subset of liberty? What difference does it make whether you call it liberty or privacy?  If privacy is a subset of liberty than there is no higher rest for a restriction than is found under Article 21.
  • Kapil Sibal: This is important today because the State is all-pervasive. This is a different age. Law needs to catch up. You cannot say “wait for Parliament”. I doubt that Parliament will do it. (Concludes)
  • Shyam Divan:
    • Privacy must be constitutionally protected because statute law is insufficient to protect the interests at stake.
    • Categories of privacy overlap. Personal information, autonomy, physical space, property. And a number of overlapping interests.
    • There are two issues before the Court: whether privacy dwells in Part III, and the correctness of MP Sharma and Kharak Singh. Please confine yourselves to answering those questions, and not a broader debate.
    • In the original case which has now come to this Court, there were several challenges. The State said, all of this is under privacy. hat is why this case was referred. It’s not just about information, but about the body and about surveillance. Please keep that in mind while deciding the matter. (Concludes)
  • Anand Grover:
    • I cannot be asked to give up one right to avail of another.
    • Don’t just look at US law. It’s quite restrictive. Look at the ECHR, Latin American law, the Canadian charter. Canada has read in privacy into liberty and security.
    • Privacy applies equally to poor and rich. (Concludes)
  • PV Sundaresan (For Kerala): If I don’t have privacy, I don’t have privacy of thought and it is dangerous.  Privacy is part of both 19 and 21. State submissions that privacy is fluid and vague and not concrete, is irrelevant as the same is the case with liberty and life. No ground to deny right. (Concludes)
  • Meenakshi Arora:
    • The right under Article 21 is not a gift of the Constitution. It always existed. Even if it it were a common law right, it became fortified in Article 21. Fundamental Rights are empty vessels that get enriched over time, like how life and liberty under Article 21 have grown. So should privacy.
    • The State cannot say I will give you welfare if you give me privacy. State can never force a bargain in which poor or rich or anyone is asked to waive their right of privacy in return for food or welfare.
    • The Court should not leave privacy at the mercy of the executive. It is not open for the Govt to say this after 70 years of independence. (Concludes)
  • Sajan Poovayya: State only has a semantic problem with privacy not a real problem with the right. (Concludes)
  • Arvind Datar:
    • If privacy is a subset of fundamental rights, it must be a fundamental right. All concepts under Part III are elastic and Privacy is as important as life. If privacy is not a Fundamental Right, there is no remedy if a statute takes it away and that’s dangerous.
    • Constitution did not recognise a separate right to privacy only because it was covered elsewhere. This Court has filled in the skeleton of rights with flesh and blood.
    • It is appalling that State says that there is no Fundamental Right to privacy in 2017 (Quotes Cromwell at the State: “think it possible, in the bowels of Christ, that you might be mistaken.”)
  • Hearing Concludes. Judgment reserved. 

Day 5, 01.08.2017

  • Senior Advocate C.A. Sundaram (For Maharashtra): Only Parliament can introduce new rights. Data can be protected under Article 300A. Privacy as an Fundamental Right has problems, for instance, it differs for public and private persons. Next question is who is a public person?And who can invade a public person’s privacy? And whether the press can do it in exercise of free speech.
  • CJI: The illustration is unacceptable as we are dealing with State action and rights against State
  • CA Sundaram: If asked to choose between subsidized food and private information coming out, people will choose the former.
  • Chelameswar, J: It’s a cruel choice!
  • CA Sundaram: China does it.
  • Chandrachud, J: Does this mean that all civil and political rights are subservient to some vague notion of welfare? That’s not our Constitution.
  • CA Sundaram: Context is everything and that may well be the choice with Aadhaar!
  • Chelameswar, J: Why is it not possible to not invade privacy and still implement Aadhaar or any other scheme?
  • CA Sundaram: It is possible but privacy cannot be a fundamental right as personal liberty in 21 only refers to physical body.
  • Nariman, J: Mind is not included?
  • CA Sundarma: No!
  • Nariman, J (annoyed): Your  propositions are perhaps even a step than worse than majority judgment in Kharak Singh. “How can you argue such a thing today?”  Can UDHR and ICCPR be read into Fundamental Rights  today following protection of human rights?
  • CA Sundaram: No
  • Nariman, J (annoyed): Please look up NALSA and other judgments.
  • CA Sundaram: Civil liberties are not included in personal liberty because framers of the Constitution rejected that notion. This is not a case of interpreting but that of introduction of a new right and only Parliament can do that. Data protection is a more tangible issue but is traceable to Article 300A and not to fundamental rights.
  • Chelameswar, J: How personal private data would be merely property?
  • CA Sundaram: Such data is commercially valuable. Property is a wide term.  State that holds personal data does hold it in fiduciary capacity. That relationship is governed by common law right and right to property and not any fundamental right. (Reads Manlone case)
  • Nariman, J: None of these principles are useful for our constitutional law and that we are operating at a different level.
  • CA Sundaram concludes his submissions.
  • Additional Solicitor General Tushar Mehta (For UIDAI): Privacy is subjective and vague and hence, cannot be a Fundamental Right. It is too late in the day to say privacy is not a right at all. It is of course valuable but it’s not a Fundamental Right. There are statutory protections of privacy. It has always been protected even prior to Constitution. The is no need to elevate it. Since privacy is subjective and may differ from context to context, legislature is better positioned to protect it than giving it a Constitutional protection
  • Bobde, J: What happens when legislation deprives or invades that right?
  • Tushar Mehta: It can be protected as a common-law right.
  • Nariman, J: What if someone challenges 8 (1)(j) of RTI Act on the ground that “unwarranted” is too vague? How do we answer the challenge if privacy is not a Fundamental Right. (Bobde, J still wants to know what happens when Legislation invades privacy)
  • Tushar Mehta: It can be challenged under Article 14.
  • Bobde, J: That means you have located privacy under Article 14 (a fundamental right!)
  • Tushar Mehta: It can be tested as an invasion of common law right.
  • Bobde, J: How that is possible when a legislation can only be challenged on the ground of Fundamental Right and not otherwise?
  • Nariman, J: What if there is a statute that offends dignity? It is not an independent right.
  • CJI: Petitioners have made a simple submission how dignity flows from Preamble. Privacy is not too dissimilar.
  • Tushar Mehta: Merely because privacy protection by legislation may not be adequate because legislature is capable of repealing the protection, is not a ground to elevate privacy to Fundamental Right.
  • Chandrachud, J: What if Aadhaar is repealed and goes to the pre 2016 position? Where does the citizen go in that case?
  • Tushar Mehta: Easements Act, Telegraph Act, etc all protect privacy. The hazards of treating a vague general right of privacy should be taken note of. Aadhaar protects Human Privacy. There are developed, developing and underdeveloped countries. Even in some developed countries like US , privacy is a fairly limited right. (Cites a long list of countries that do not have privacy as a Constitutional right but only statutory protection)
  • Nariman, J: Even Pakistan, the slamic Republic of Pakistan has a Fundamental Right to privacy!
  • Tushar Mehta (Jokes): An Iranian minister of sea transport was stopped by immigration by Pakistan asking how a landlocked country can have such minister to which the minister replied by saying how even Pakistan has a minister of law and justice. (Laughs)
  • Nariman, J: What does KSA in the list mean?
  • Tushar Mehta: Kingdom of Saudi Arabia. (Manages to amuse Nariman, J)
  • Tushar Mehta: Right to vote is not a fundamental right.
  • Chelameswar, J: It is a fundamental right and there are constitution bench judgments to say that although some subsequent judgment say otherwise.
  • Chandrachud, J:  Assuming privacy is not Fundamental Right, how does a citizen complain against a data protection law on the ground it does not afford adequate protection?
  • Tushar Mehta: It cannot be challenged.
  • Bobde, J: What are the attributes for a right to be elevated to be a fundamental right?
  • Nariman, J:  Fundamental rights need to be interpreted according to changing needs of the times. Constitution cannot be interpreted like a statute. Words are not important, the principles are and that task is with us, the Court, not Parliament. (Tushar Mehta agrees but continues with his submission. Reads Malone case again)
  • Chandrachud, J: The same case has a line that says privacy is at the heart of liberty in a modern state.
  • Tushar Mehta:  Yes, it is valuable but it’s not a Fundamental Right.
  • Chandrachud, J: In America  a woman was stripped on the road and frisked to search for drugs. Privacy and human dignity important to control such State action.
  • Tushar Mehta:
    • Third party cellphone data can be collected in the US for Govt purposes. US protects data privacy under the US Electronic Communications Act. Privacy can only be statutorily protected. World of total privacy does not exist.
    • Even if the Govt wants to conduct surveillance with the use of Aadhaar data, it is impossible to do so. The process of authentication under the Aadhaar Act is completely safe. (Hands out a list of countries that have not recognized privacy as a fundamental right. Nariman, J says he is not sure about Japan).
    • Data does not confine only to computer data but all kinds of data including personal data.  Aadhaar asks for only limited amount of data.
    • There should be an overarching legislation that protects data and privacy. The Ministry of Electronics and information technology already in the process of enacting a data protection bill. Yesterday Government has constituted a committee headed by retired justice BN Srikrishna to evolve principles relating to data privacy.
    • Even judicially trained minds cannot define privacy definitively and vague concepts cannot be made Fundamental Rights. There are dangers in expanding the scope of Part III. Right will be misused if the boundaries are not defined. Public interest and good governance will be seriously harmed if privacy is made a fundamental right.
    • There are lots of Indians living below poverty line and almost entire population has Aadhaar card.
  • Nariman, J: Do not argue on the merits of Aadhaar.
  • Tushar Mehta: I am only trying to convey the damage that will be caused if privacy is made a fundamental right and Aadhaar is repealed.
  • Nariman, J: We haven’t said that we’ll repeal Aadhaar. We might balance it with right to privacy. (Tushar Mehta still gives two example of courts upholding the use of Aadhaar for PDS and to check bogus admissions in school.)
  • Tushar Mehta (Still arguing on merits of Aadhaar): The Supreme Court, in PUCL case, has endorsed biometric identification. In Lokniti Foundation, the Court has recognized the use of pre paid sim cards by terrorists. What is the big deal in giving your fingerprints. It can be extracted easily in a lab by getting hold of something that I have touched. India needs more bathrooms than privacy. We cannot to rely on American judgements because their notion of privacy is different from ours. (Gives the example of Public Display of Affection)
  • Chandrachud, J: It means that Indians are more private and hence we need a right to privacy more than them. (Tushar Mehta concludes his submissions)
  • Senior Advocate Rakesh Dwivedi (for Gujarat): Every aspect of privacy should be tested separately to decide if it can be elevated to the level of fundamental right. Right to life and liberty is enhanced when information is made public. Not every disclosure is breach of privacy.
  • Chandrachud, J: In the age of technology, privacy should not stifle the spread of knowledge and innovation. Privacy should be balanced against spread of knowledge and innovation.
  • Rakesh Dwivedi: Privacy is not a fundamental right in general but if the court thinks that certain aspects of it satisfy the reasonable expectations of society, then those aspects can be read under Article 21. But privacy as a whole cannot be made a fundamental right.
  • CJI:  Nobody is claiming that it should be an absolute right. It will have limitations of course.
  • Rakesh Dwivedi (Agreeing):  There are important privacy concerns and they should be recognized.
  • Chandrachud, J: How much autonomy does an individual has? Or only the nature of the claim has to be looked into?
  • Rakesh Dwivedi: Right to choice is intrinsic under Article 21. It does not need the privacy ladder to climb there. If choice precedes disclosure, there is no privacy assertion possible. Informational privacy is not part of Fundamental Right.
  • Chandrachud and Nariman, JJ:  Can it not be said that every time I give my mobile number to Gov.t agency, is there is no reasonable expectation that it is used only for that purpose and no other purpose? My reasonable expectation would be that the data is only used for the purpose for which it was collected
  • Rakesh Dwivedi: The limited use doctrine will apply, but one cannot claim privacy protection. It needs to be decided on facts and circumstances of each case.

Bench rises for the day. Hearing to conclude tomorrow. Respondents will argue in the first half and Rejoinder by petitioners in the second half.

Day 4, 27.07.2017

  • Attorney General KK Venugopal:
    • It is required to keep in mind cultural and environmental context to determine the nature of privacy right. There are a large number of US judgments that refused to look into European jurisprudence on privacy. India must not blindly follow foreign jurisprudence.
    • If there is a countervailing state interest, there can be no informational privacy. The line drawn is the relevance of information sought for the purpose of the Act challenged.
  • Chandrachud, J: In this day and age where more and more data is in the public domain, the importance of informational privacy protection is now paramount. There is a difference between “compelling”  and “legitimate” state interest. Former is a stricter standard.
  • AG: Then the latter lighter standard must be applied in India.
  • Chelameswar, J: State will always act with legitimate interest. For example always there a legitimate interest to control crime But Article 20 gives rights to accused.
  • AG:  None of the petitioners challenge census etc. But have challenged Aadhaar.
  • Chelameswar, J: Census act has confidentiality provisions. In Aadhaar, the moment you put fingerprint whole world has the data access.
  • Bobde, J: Aadhaar Act has such provision?
  • AG: Section 29 where disclosure of core biometrics is prohibited.
  • Chandrachud, J: Where is the protection for the mobile number? Why medical history is excluded from definition of demographic info and why they are not protected? If you have a database of billion mobile numbers and if it is all leaked, there are people getting whatsapp messages from all kinds of people. A robust mechanism is necessary even if you have a legitimate interest to create that database.
  • AG: That robust mechanism already exists. (Chandrachud, J not quite impressed)
  • Bobde, J and Nariman, J (To Tushar Mehta appearing for UIDIA) : So you have enacted this to protect privacy! Then why are you disputing the right.
  • Gopal Subramanium (for petitioners): All enrollment agencies and BSPs are private agencies and we have a lot to say about that before the right bench.
  • AG: The very fact that there is an Act passed to protect privacy means there is no Fundamental Rights. (Judges amused). There are decisions of Supreme Court that have recognized Aadhaar, for example, the Right to food case.  If there is a Fundamental Right to privacy it must be held that there is no such claim involved in this case. MP Sharma and Kharak Singh are to be upheld fully.
  • Senior Advocate C. A. Sundaram (For Maharashtra):
    • Order of the reference is clear. Whether the right to privacy is Fundamental Right. Not if there are aspects of privacy that can be Fundamental Right. If privacy per se is Fundamental Right, all facets in its inclusion would be Fundamental Rights too. But privacy cannot be Fundamental Right. Doing so would be injecting a new Fundamental Right which can only be done by Constitutional amendment.
    • What is privacy? Is there an unambiguous definition of it to be crystallized as a right?
  • Bobde, J: Where is ‘life’ defined?
  • C. A. Sundaram: It is to breathe and have access to basic needs to exist. Antithesis of death.
  • Chandrachud, J:  That is not the understanding that I have.
  • Nariman, J: It’s only animal existence. We have interpreted life to mean more than animal existence.
  • CJI: Dignity and liberty are also not defined.
  • C.A. Sundaram: We cannot elevate privacy to liberty or any other Fundamental Right.
  • Nariman, J: You may get Privacy by reading dignity and liberty together.
  • C.A. Sundaram: But that does not make Privacy a Fundamental Right per se. Dignity in the preamble is with fraternity not with liberty.
  • Nariman, J: So what?
  • C.A. Sundaram:
    • Law is set of rules by which society interacts. There are NDMC rules that compound walls can only be three feet. If privacy becomes Fundamental Right, all cases challenging such laws will come before the Court.
    • Kharak Singh correctly decided but incorrectly interpreted by petitioners. Ascertaining movements could not have been an infringement of Part 3 of the Constitution. So the ratio was not wrong.
  • Nariman, J: No, it is wrong insofar as it sees movement and liberty separately. There is an internal contradiction in the majority judgment in Kharak Singh because it uses privacy without saying so. It cites Wolf v Colorado which is essentially privacy.
  • C.A. Sundaram:  That’s because it refers to one castle. It traces to property right not liberty right.
  • Chelameswar, Bobde, Nariman & Chandrachud, JJ: It’s not only property right. And privacy is a tangible infringement.
  • C.A. Sundaram: No, it is not. Is watching pornography even within my home, a fully protected right? Privacy can be a common law right but not a Fundamental Right.
  • Chelameswar, J (On tangibility of infringement): What is the tangible problem in midnight knocks?
  • C.A. Sundaram:
    • Midnight knock is a physical intrusion. Privacy is an incidental impact. Which is why it is not an independent stand alone Fundamental Right.
    • There cannot be any right, for example, to keep my house dirty. That may be an undignified way of living. There is no privacy or choice to not educate my kids. (Chandrachud, J interrupts to tell him that it’s no one’s case that the right is absolute)
    • Gobind never propounded the right to privacy. It only assumed. Error in subsequent judgment. (Bobde, J is not convinced). The whole unbroken chain of jurisprudence is based on the assumption that Gobind makes. But this bench will need to decide afresh.
    • There is no Constitutional right to privacy even under US constitution. Even though zones of privacy may be created by specific guarantees.
  • Nariman, J: Our privacy may need to be more than ordered liberty and include dignity. If we recognize the Fundamental Right to privacy then these boundaries won’t apply.
  • C.A. Sundaram: Even if the bench were to hold the right, it will have to define it to some extent.
  • Chelameswar, J:  Freedom of speech is open ended and why privacy cannot be like that?
  • C.A. Sundaram: Every Government action has an impact on privacy, therefore, a broad constitutional right to privacy must not be laid down. We moved from civil liberty to personal liberty in order to narrow the scope of liberty.
  • Nariman, J: But privacy can only come under personal liberty.
  • C.A. Sundaram: Privacy was considered and dropped by the Constitutional advisor and the assembly.
  • Nariman, J: This is exactly how due process was dropped. (Laughter erupts)
  • C.A. Sundaram: Personal liberty and privacy are different.
  • Chandrachud, J: The qualification of personal liberty was done because it did not want other freedoms such as Article 19 freedoms in liberty. The other apprehension was that it would be read in an economic sense rather than a political or personal sense like it was done in the US. Due process was used to establish freedom of contract to strike down new deal Laws.

Bench rises for the day. Hearing will resume on Tuesday i.e 01.08.2017.

Day 3, 26.07.2017

  • Senior Advocate Kapil Sibal (For Karnataka, West Bengal, Punjab and Puducherry): Privacy is not an absolute right. Will never be. The Court will have to strike a balance. Privacy is an issue not only between State and citizen but also between non State actors inter se. It becomes an issue as soon as one buys a mobile phone. M.P. Sharma and Kharak Singh judgments have no relevance to appreciate the contours of privacy in the present era.
  • Dr. D.Y. Chandrachud, J: Dangers of State breaching confidentiality is one thing. But ‘equally dangerous’ is for example a taxi aggregators using data that you share against you.
  • J.S. Khehar, CJ: At the moment we are only focusing on whether or not there is a Constitutional right to privacy. Broad-basing it has to be done later.
  • J. Chelameswar, J: If there is a right of privacy, where do we locate it? If it is to be located in more than one Article, locating in Article 21 would be much less cumbersome. But if it is  Article 19 etc, we will need to look at which subarticle according to the respective case applies.
  • Kapil Sibal: Essentially it is in Article 21. Invasion may have collateral effect on other rights.
  • S.K. Kaul, J: Then how do we locate the right if we cannot contemplate all the manifestations possible in 10 years time.
  • Kapil Sibal: That is why you should not lay down the law but just to hold the existence of the inalienable inherent right.  National security, crime investigation, accessing benefits, etc can be the restrictions to such right. Data protection principles qua State includes necessity, legitimate interest, and proportionality and procedural reasonableness. Right to privacy enjoins the State to put in place a robust data protection law so that non citizen actors collecting data are also bound.
  • Gopal Subramanium: After 2012 Shah Committee report there has been significant evolution in the principles and I will provide a copy of privacy bill & Shah Committee report to the bench.
  • Attorney General KK Venugopal for UOI:
    • Privacy could have been conferred under Constitution but it was intentionally left out. Life and personal liberty are not absolute. Which is why we have death penalty, incarceration etc.
    • Privacy can be one of the species of personal liberty. This right of privacy consists of a large number of sub-species. All these sub species cannot be elevated to the level of a fundamental right. Every single claim of privacy or whatever the extent of which it is encroached upon, it will automatically be elevated to an Fundamental Right.
    • The World Bank has said that something like Aadhaar should be followed by all countries. So many benefits are given through Aadhaar. One cannot say that giving my biometrics is violative of my privacy because the Rights of others are also involved. Article 21 includes right to live with dignity I.e also to basic needs such as food reasonable environment, suitable accommodation etc. An Act passed with those salutary objects cannot be defeated on claims to privacy.
  • Chandrachud, J: Privacy is not an elitist concern and it is equally applicable to the large masses. For example if State wants forced sterilization on slum dwellers for population control among that group, perhaps only privacy claim may stand in the way. If we say privacy is not a Fundamental Right at all it would be a blanket sanction of anything the State can do.
  • AG KK Venugopal: Privacy is not a homogeneous right. There are a variety of sub-species and sometimes the invasion may affect that sub-specie right.
  • S.A. Bobde, J: What is the difference between common law right and Fundamental Rights? Common law rights are private rights and belong to an era with no constitutional limitations. We only protected some of those preexisting rights as Fundamental Rights enforceable against the State.
  • AG KK Venugopal: The qualitative difference is the different enforcement mechanism. Common Law right cannot be tested against Constitution.
  • R.F. Nariman, J:  This framing of one right against the other is incorrect. If later, for instance, we see that Aadhaar for food, etc is just fair reasonable, then the law may pass muster. Why do we have to even argue against privacy as Fundamental Right?
  • AG KK Venugopal: World Bank has said all countries must follow Aadhaar like model. There is no difficulty in going back to 5 or 3 judges.
  • AG KK Venugopal: It’s preposterous to state that India will become totalitarian because of Aadhaar.  Privacy claims require better priority in developed countries . Not in country like India where a vast majority of citizens don’t have access to basic needs.
  • CJI & Bobde, J:  9 judge bench is not going to say anything on Aadhaar.
  • Kaul, J: Can we shut out the door for eternity by saying that there is no Fundamental Right to privacy?
  • AG: No, some aspects of privacy may require an elevated protection of Fundamental Right.
  • Nariman, J: Petitioners have classified three species – body, dissemination of information and that of the mind. Tell us which one is Fundamental Right.
  • AG: Privacy is better protected by other more concrete rights. No need to recognise an independent right to privacy. Privacy is no better than a general notion of say pursuit of happiness. Even if the Bench were to decide that there may be aspects of Privacy as Fundamental Right, it should leave open the question if any privacy claim as a Fundamental Right is maintainable in a given case.
  • CJI: These limitations are there even for other Fundamental Rights. It does not mean they cease to be Fundamental Rightss. What is special about privacy?
  • AG: In a developing country there should be no Fundamental Right to privacy. There is a woman in Odisha who is ready to sell her daughter because of poverty. Privacy claim is too rich for a country like India. [Again argues on the merits of Aadhaar Case & cites World Bank!]
  • Nariman, J: Property ceased to be a Fundamental Right and look how it had affected the poor. Think about privacy for the poor man.
  • Chandrachud, J: Forced sterilisation during 1975 was the most atrocious act done. Do you want justify them all.
  • AG: Allow me to argue before the smaller bench that there is no Fundamental Right claim involved in this case.
  • CJI: But you refused to argue this before the smaller bench on the basis of larger bench decisions. If you had said that before smaller bench we need not have come here at all.
  • ASG Tushar Mehta for UIDAI: Privacy is a right but not a fundamental one.
  • Nariman, J: We are going to consider all aspects and give  a comprehensive judgment for conceptual clarity for the nation.

Bench Rises. Hearing to continue tomorrow.

Day 2, 20.07.2017:

  • Senior Advocate Arvind Datar: In the 3-judge bench order in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 that referred the Aadhaar case to a larger bench, Kaul J questioned whether there would be remedies against private persons infringing privacy? Privacy is divided into three parts. Physical privacy, information privacy, and decisional privacy. It is at the center of Part III of the Constitution.Not a penumbral right.
  • D.Y. Chandrachud, J (On violation of privacy by a Non-State actor) : There is an obligation on State to protect privacy if we find it also as a horizontal right. Contours of regulation of private actors conduct may not be strictly in issue in this case.
  • Arvind Datar: Not necessary that every horizontal right has to be regulated in a way we understand regulation.
  • S.K. Kaul, J: For a privacy violation, even damages will not be a proper remedy. It has to be necessarily injunctive.
  • Arvind Datar: Rajagopal and Mr. X v. Hospital Z cases are not purely against private actors and seeks a declaration that privacy is part of Part III. Concludes his arguments.
  • Senior Advocate Anand Grover:
    • Even with respect to 20(3) in light of Selvi , MP Sharma deserves to be overruled.
    • There is no English common law precedent for privacy as we conceive. Only American common law recognises it. International law only casts obligation on the States.
    • Please do not define privacy. You may indicate the facets of privacy like how Gobind did it.
    • There is no requirement to ratify UDHR. It is a declaration. ICCPR has been ratified by India and we need to understand it’s impact. Explains how international covenants can and should be read into Part 3 rights. Refers to Vishakha and cites Bachan Singh case where Article 6 of ICCPR was in issue. All conventions not recognised hitherto as a Fundamental Right have to be read into Fundamental Rights according to Vishakha.
  • R.F. Nariman, J (Impressed by the argument): This is important to say that even MP Sharma judgment was incorrect because of UDHR.
  • Chandrachud, J: Is right to identity a part of privacy? If a Government has a digitised list of convicted criminals for its algorithmic analytics predictive models etc it may not be a violation because state may have a legitimate interest. But it may be a violation if a whole segment of a population is tracked and profiled similarly.
  • Anand Grover: Yes, therefore, we need to answer those questions on a case to case basis.
  • J.S. Khehar, CJI: Unless a compulsion to disclose is about an information that is bothersome to your dignity then it will be a violation of privacy. There are three tiers, liberty, dignity and then privacy.
  • Anand Grover: Privacy is inseparable from liberty and dignity. Even animals have dignity under our law. But humans have privacy as part of human dignity. Privacy may be different for different times countries or cultures.
  • Senior Advocate Sajan Poovayya:
    • It is like planets under Indian astrological system. It may reside in any one house in any given case. Denial of privacy may deny or chill free speech in any given case. (On where does the right to privacy reside)
    • India ahead of US in broadband and mobile connection count. Given the information explosion in the digital age , if not in Aadhaar, a data protection and privacy question would have risen in another case and perhaps before a 9 judge bench.
    • If it is not declared a Fundamental Right, the Government will deal with it very differently, irrespective of remedy, etc. The value of a right being fundamental is not only with respect to its remedy but broader. Remedy may be invoked only when pinch is felt.
  • Chandrachud, J: Is State collection information on suspicion of terrorism also a violation of privacy? The problem is of collection of data or its use? Where does the violation occurs?
  • Sajan Poovayya: Court should lay down that collection itself is problematic without a just reasonable law.
  • Chandrachud, J: Should we use the principle of limitation of purpose for collection and use? How Artificial Intelligence (AI) and Big data has progressed so much towards data explosion .. is it qualitatively different when State collects it?
  • Sajan Poovayya: Even under contract, the Limitation of purpose is safeguarded. Under Constitution it’s a much broader right. Privacy not only is about secrecy but has expanded to include also information given in public domain. Citing Justice Alito passage in US V Jones, says that there is no trade-off of privacy and convenience, even when information is voluntarily furnished.
  • S.A. Bobde, J: What about dark web? Isn’t 80% of internet dark?
  • Sajan Poovayya: But State cannot be a proponent of a dark web. State must first respect privacy. State cannot use the possibility of other bad actors’ conduct to justify it’s violation of privacy. Nor it’s technical limitation to protect should have any bearing on laying down the right. State has an obligation to protect citizens digital identity as much as physical identity. No less. The declaration that privacy is a fundamental right itself is the first step towards fulfilling that obligation of oversight on executive. In UK, the data collected for their id project was destroyed by legislation. It is impossible to lay down the contours of privacy at this stage.:
  • Chelameswar, J: But some contours have to be identified without fixing those. There is a necessity to note the existing developments on the law and subsume those.
  • Sajan Poovayya: It is impossible to lay down any contours. Just a declaration as a Fundamental Right is sufficient now. Time will bring technology that will invade privacy may be unimaginable but must be declared to be protected as a right therefore without qualifications or specific tests on the restrictions. In a 1890 case, the right to be left alone was recognised in the context of business advances etc. It’s a shame that we are debating in 2017, the right which we have always had. Even a colonial era law Post office Act, 1898 prescribed a strict procedure to open letters to be read. If you had declared the right to privacy as a fundamental right 15 years ago, the State would not have done what they have done with Aadhaar i.e. collect the biometric data of the entire citizenry in an executive fiat.
  • Senior Advocate Meenakshi Arora: Right to Privacy is already a recognised right. It’s everywhere. Even under Articles 17, 24 and 25. For example, one cannot be compelled to specify his caste.
  • Chandrachud, J: What about social benefits? you need to declare your caste there.
  • Meenakshi Arora: That is at best a limitation of purpose test. Even there the procedure needs to be tested if such information is procured non-intrusively. You may sometimes be compelled to disclose certain information but you do have a right.

Petitioners conclude their arguments. Union of India will argue on Tuesday. Bench arises.

Day 1, 19.07.2017:

  • Senior Advocate Gopal Subramaniam, appearing for the petitioners: Preamble has liberty as a fundamental value and the question of privacy does not arise without a notion of liberty. Life and Liberty are not conferred by the Constitution. They are inherent in all human beings. All articles of part III of the Constitution necessarily need privacy. Privacy is not a penumbral right. Not a concomitant right. It is the very essence of liberty. It is not only a fundamental right, but an inalienable one.
  • Gopal Subramaniam (On Articles 14, 19 & 21): Article 14 is important because equal protection guarantees and protects liberty. Exercise of any one of those freedoms under Article 19 is choice and therefore, involves privacy. Article 21 inherently recognises dignity. All of these rights have an element of personal choice i.e. privacy. Need to combine these 3 Articles is not only because there are overlaps but because it is much stronger.  Article 25 i.e. right and freedom of conscience also requires a necessary zone of privacy. We are pitching privacy is much higher. We are not arguing some random Alexander Dumas case. But the essence of Constitution. Attorney General is relying on MP Sharma and Kharak Singh. But ratios there have been displaced by Cooper and Maneka.
  • Senior Advocate Shyam Divan: Privacy has no definite contours but needs to be developed case by case. It in any case includes aspects of bodily integrity, informational self determination, etc which have serious implications in this case. (CJI cautioned him not to venture into the merits of the Aadhaar case)
  • Shyam Divan (On MP Sharma case): Only a narrow compass on 20(3) was in issue in that case. We are not trying to narrow it down to 20(3) but as a broader right. If you don’t recognise a right of privacy,. All other rights will be denuded of their respective vigour. He then referes to a series of cases on ‘right to privacy’.
  • Shyam Divan (On UDHR and ICCPR declaration): Right to privacy is a global concern of the day. In a digital age, the dangers of not reading the right as a part 3 right may be aggravated.
  • J.S. Khehar, CJI: So we have a right to privacy under ‘international human law.’
  • DY Chandrachud, J: There is now a lot of jurisprudence in ECHR now to say right to data protection is wider than right to privacy. It says statutes will need to determine the content of the right. Which is why there are two separate conventions. One on human rights which covers privacy. There is a second convention on fundamental rights that includes data protection. We are in a big data age we like it or not.
  • Senior Advocate Arvind Datar explaines how the reference in the Kharak Singh case to privacy is stray and that the majority actually upholds privacy when striking down the regulation that provided for mid night knocks and domiciliary visits. The proposition that privacy is not guaranteed under Constitution is not the law laid down by the MP Sharma & Kharak Singh cases.
  • DY Chandrachud, J: Should we just hold that privacy should just be an amorphous right with no contours of the right or the limitation? If we just hold privacy is a right, Naz judgment may become problematic. Can we atleast say it includes certain ingredients without exhaustively defining? Even autonomy does not completely fall within privacy. I cannot assert a right to decide whether my children will go to school. Privacy may be a small component of liberty but it cannot only lie in Article 21 or 19.
  • RF Nariman, J: After submissions from Arvind Datar that depends on the other concurrent right that is infriged. In short it needs to be case by case.

Source: twitter.com/prasanna_s, twitter.com/SFLCin and twitter.com/gautambhatia88

 

OP. ED.

It is no news that the Aadhaar Scheme that makes it mandatory for the citizens to link their PAN cards with the Aadhaar cards, along with the fact that the Constitution of India does not specifically recognise the ‘Right to Privacy’ as a fundamental right has resulted into a nationwide debate. The 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ, that was hearing the Aadhaar right to privacy matter today found itself incompetent to decide the issue in the light of the decisions of larger benches that said that ‘right to privacy is not a fundamental right’ and as a result, tomorrow, a 9-judge bench will decide whether right to privacy is a fundamental right or not. Since, the right has not been recognized in Constitution, the Supreme Court has, on various occasions, defined it’s scope as per the principles of ‘Life and Personal Liberty’ as enshrined under the Constitution of India. The issue was first decided in 1954 and it still stands unresolved in 2017.

Below are the landmark judgments on the ‘right to privacy’ issue:

  • M. P. Sharma v. Satish Chandra, 1954 SCR 1077 : This is the first case that dealt with the issue concerning the right to privacy & the 8-judge bench categorically held that right to privacy is not fundamental right. Below is the relevant except from the judgment:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

  • Kharak Singh v. State of U.P., 1964 SCR 332 : The 4:2 majority of a 6-judge bench held that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

However, K. Subba Rao, J, writing down the minority view for himself and J.C. Shah, J said that “the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” Further defining the ‘right to personal liberty’, it was said that “it is a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.”

  • Gobind v. State of M.P., (1975) 2 SCC 148: Holding that the right to privacy is not absolute, the 3-judge bench said that “Depending on the character and antecedents of the person subjected to surveillance as also the objects and the limitation under which surveillance is made, it cannot be said surveillance by domiciliary visits would always be unreasonable restriction upon the right of privacy.” It was further said that “as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.”
  • PUCL v. Union of India, (2004) 9 SCC 580: The 3-judge bench held that “Right to privacy is subservient to that of security of State.”
  • State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5: A 3-judge bench held that “the interception of conversation though constitutes an invasion of an individual right to privacy but the said right can be curtailed in accordance with procedure validly established by law. Thus, what the court is required to see is that the procedure itself must be fair, just and reasonable and non-arbitrary, fanciful or oppressive.”
  • District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496: A division bench held that “every citizen has a right to safeguard the privacy of his own. However, in the case of a matter being part of public records, including court records, the right of privacy cannot be claimed.”
  • Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1: In the matter where the constitutionality of the 99th Constitutional Amendment & National Judicial Appointments Commission, 2014 was in question, this is what the the 5-judge bench said that “the balance between transparency and confidentiality is very delicate and if some sensitive information about a particular person is made public, it can have a far-reaching impact on his/her reputation and dignity. The 99th Constitution Amendment Act and the NJAC Act have not taken note of the privacy concerns of an individual.” In an attempt to strike a balance between right to know and right to privacy, the Court said that “The right to know is not a fundamental right but at best it is an implicit fundamental right and it is hedged in with the implicit fundamental right to privacy that all people enjoy.”
  • Rajagopal v. State of T.N., (1994) 6 SCC 632: A 2-judge bench defined the right to privacy as the right to be let alone. It held the right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21.

We also cannot ignore the fact that 2 out of the 9-judges that will hear the matter tomorrow, are of the opinion that the rulings in the MP Sharma and Kharak Singh cases are incorrect. J. Chelameswar and S. A. Bobde, JJ were a part of the 3-judge bench in K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735 in which the Aadhaar matter was referred to a larger bench while stating that if the MP Sharma and Kharak Singh cases “are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.”

A lot is at stakes when it comes to tomorrow’s hearing. A 9-judge bench’s decision might prove as a huge turning point. Will the decision prove to be a blow to the Aadhaar Scheme that the Government is so passionate about or will it end up sparking another debate on the fundamental rights of the citizens? Let’s wait and let tomorrow decide.

Hot Off The PressNews

Supreme Court: The 5-judge bench of J.S. Khehar, CJ and J Chelameswar, SA Bobde, DY Chandrachud & Abdul Nazeer, JJ referred the issue involving violation of right to privacy due to Aadhaar-PAN linkage to a 9-judge constitution bench. The larger bench will hear the matter tomorrow. The 5-judge bench passed this order as the 8-judge and 6-judge benches in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P., have earlier held that Right to Privacy is not a fundamental right. The Court said that the issue relating to the correctness of the aforementioned judgments needs to be decided first as it is necessary to determine whether right to privacy is a fundamental right or not, before deciding the validity of the Aadhaar Scheme.

It is important to note that on 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Hot Off The PressNews

Supreme Court: A 5-judge constitution bench will hear the Aadhaar matter for 2 consecutive days next week i.e. on 18th and 19th of July to decide whether the Aadhaar scheme amounts to violation of  Right to privacy of the citizens and data leakage.

It is important to note that on 09.06.2017, the bench of Dr. A.K. Sikri and Ashok Bhushan, JJ had in Binoy Viswam v. Union of India, 2017 SCC OnLine SC 647, upheld the validity of Section 139AA of Income Tax Act, 1961 that makes the linking of Aadhaar Card to the Permanent Account Number (PAN) mandatory and said that the provision is neither discriminatory nor it offends equality clause enshrined in Article 14 of the Constitution. As per the order of the Court, those who have already enrolled themselves under Aadhaar scheme would comply with the requirement of sub-section (2) of Section 139AA of the Act. Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being.

Source: ANI