Corp Comm LegalExperts Corner

Privacy is Prime

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

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

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

Health Data — What Does it Imply?

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

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

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

“Health data” under PDPB 2019 is defined as:

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

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

Key Pointers

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

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

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

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

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

Creation of Specific Statutory Bodies Exclusive to Implement Health Data Privacy

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

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

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

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

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

(a) Data theft.

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

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

Different Layers of Breach and Associated Penalty

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

No Commercial Use

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

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

Health Data Interoperability

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) To facilitate health and clinical research.

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

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

(d) To undertake academic research.

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

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

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

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

(a) prevention and detection of any unlawful activity;

(b) whistleblowing;

(c) mergers and acquisitions;

(d) network and information security;

(e) credit scoring;

(f) recovery of debts;

(g) processing of publicly available personal data; and

(h) the operation of search engines.

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

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

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

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

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

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

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

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

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

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


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

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

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

[1] (2017) 10 SCC 1

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Family Court’s opinion on the CD as evidence:

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

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

Analysis and Conclusion

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

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

In High Court’s opinion,

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

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

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

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

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

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

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

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

Case BriefsHigh Courts

Two Finger test Held — Unconstitutional

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

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

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

In the present case, two appeals have been combined.

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

Prosecutions’ Case

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

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

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

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

Analysis of the Court

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

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

Point about the “Two-Finger Test”

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

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

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

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

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

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

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

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

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

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

Further, the Court found the only question for consideration,

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

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

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

Conclusion

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

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

Case BriefsSupreme Court (Constitution Benches)

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

Majority Verdict penned by Sanjiv Khanna, J

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

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

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

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

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

Public Interest Test

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

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

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

Judicial Independence

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

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

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

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

Delhi High Court’s Judgment

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

NV Ramana, J’s separate but concurring opinion

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

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

First Step: Whether information is private or not

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

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

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

Chandrachud, J’s separate but concurring opinion

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

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

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

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

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

Case BriefsSupreme Court

Supreme Court: In the bid to gather information from intermediaries regarding the names of the originators of any message/content/information shared on the platforms run by these intermediaries, the Court has asked the Ministry of Electronics & Information Technology to file an affidavit within three weeks placing on record the stage at which the process of framing/notifying the rules is at. The Court also asked the Secretary to give definite timelines in respect of completing the process of notifying the rules.

The bench of Deepak Gupta and Aniruddha passed the order in the light of the fact that there are various messages and content spread/shared on the social media, some of which are harmful.

“Some messages can incite violence. There may be messages which are against the sovereignty and integrity of the country. Social media has today become the source of large amount of pornography. Paedophiles use social media in a big way. Drugs, weapons and other contrabands can be sold through the use of platforms run by the intermediaries.”

The bench, hence, noticed that in such circumstances, it is imperative that there is a properly framed regime to find out the persons/institutions/bodies who are the originators of such content/messages. It may be necessary to get such information from the intermediaries.

Some intermediaries, however, submitted that they cannot provide information either with regard to the content or with regard to the originators because they have end to end encryption and therefore, even the intermediaries are not in a position to find out who is the originator or what is the content.

On the said issue, the Court noticed that

“de-encryption, if available easily, could defeat the fundamental right of privacy and de-encryption of messages may be done under special circumstances but it must be ensured that the privacy of an individual is not invaded. However, at the same time, the sovereignty of the State and the dignity and reputation of an individual are required to be protected.”

It, hence, said that for purposes of detection, prevention and investigation of certain criminal activities it may be necessary to obtain such information. De-encryption and revelation of the identity of the originator may also be necessary in certain other cases, some of which have been highlighted hereinabove.

After Solicitor General Tushar Mehta told that the Court that  the matter is under active consideration of the Union of India and that the draft rules in this regard have already been framed and are only required to be notified, the Court asked Solicitor General to take complete instructions in the matter.

[Facebook Inc. v. Union of India, 2019 SCC OnLine SC 1264, order dated 24.09.2019]

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 1Day 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 24.08.2017]

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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 EdsOP. 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.