right to privacy

Case BriefsSupreme Court

Supreme Court: After the Technical Committee and the Overseeing Judge submitted their reports in the Pegasus Spyware case, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has listed the matter after four weeks for further hearing.

The Court had, on 27.10.2021, in Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985 appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, it eventually decided to step in after the subsequently filed petitions, as well as additional documents filed by others, brought on record certain materials that could not be brushed aside, such as the reports of reputed organizations like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

[Manohar Lal Sharma v. Union of India, 2022 SCC OnLine SC 1085, order dated 25.08.2022]

For Petitioner(s): Mr. Kapil Sibal, Sr. Adv. Mr. C.U. Singh, Sr. Adv. Mr. Shadan Farasat, AOR Mr. Nizam Pasha, Adv. Ms. Vidusshi, Adv. Mr. Zubin, Adv. Mr. Shourya Dasgupta, Adv. Mr. Bharat Gupta, Adv. Ms. Tanvi Tuhina, Adv. Ms. Hrishika Jain, Adv. Mr. Dhruv Bhatnagar, Adv. Mr. Aman Naqvi, Adv. Mr. Arvind P. Datar, Sr. Adv. Mr. Prateek K Chadha, AOR Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Ms. Radhika Dhanotia, Adv. Ms. Ayushi Rajput, Adv. Mr. Rakesh Dwivedi, Sr. Adv. Mr. Prateek K Chadha, AOR Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Ayushi Rajput, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Ms. Radhika Dhanotia, Adv. Mr. Dinesh Dwivedi, Sr. Adv. Mr. Prateek Dwivedi, Adv. Mr. Nishant Singh, Adv. Mr. Prateek K Chadha, AOR Ms. Ayushi Rajput, Adv. Ms. Radhika Dhanotia, Adv. Ms. Vrinda Bhandari, Adv. Mr. Eklavya Dwivedi, Adv. Ms. Monika Dwivedi, Adv. Mr. Krishnesh Bapat, Adv. Mr. Tanmay Singh, Adv. Ms. Anandita Mishra, Adv. Mr. Madhav Khurana, Adv. Ms. Natasha Maheshwari, Adv. Mr. Rahul Unnikrishnan, Adv. Mr. Narendra Mishra, Adv. Mr. V.M. Eashwar, Adv. Mr. Abhimanyu Tewari, AOR Mr. Lzafeer Ahmad B. F., AOR Mr. Shyam Divan, Sr. Adv. Mr. Rahul Narayan, AOR Ms. Samiksha Godiyal, Adv. Ms. Ria Singh Sawney, Adv. Ms. Udayadita Banerjee, Adv. Mr. Govind Manoharan, Adv. Ms. Sugandha Yadav, Adv. Petitioner-in-person Ms. Resmitha R. Chandran, AOR Mr. Biju Joseph, Adv. Mr. Hardik Vashisht, Adv. Mr. Pramod P., Adv. Mr. Mishra Saurabh, AOR Mr. Colin Gonsalves, Sr.Adv. Mr. Sadiq Noor, Adv. Mr. Satya Mitra, AOR

For Respondent(s) Mr. Tushar Mehta, LD SG Mr. K.M. Nataraj, LD ASG Mr. Rajat Nair, Adv. Ms. Kanu Agrawal, Adv. Mr. Ankur Talwar, Adv. Ms. Deepabali Datta, Adv. Mr. Arvind Kumar Sharma, AOR Mr. M.K. Maroria, AOR Ms. Aishwarya Bhati, ASG Ms. Shagun Thakur, Adv. Ms. Poornima Singh, Adv. Mr. Manvendra Sing, Adv. Ms. Manisha Chava, Adv. Mr. Gurmeet Singh Makker, AOR Dr. Abhishek Manu Singhvi, Sr.Adv. Mr. Suhaan Mukerji, Adv. Mr. Amit Bhandari, Adv. Mr. Vishal Prasad, Adv. Mr. Abhishek Manchanda, Adv. Mr. Sayandeep Pahari, Adv. Mr. Tanmay Sinha, Adv. For M/S. Plr Chambers And Co., AOR Mr. Rakesh Dwivedi, Adv. Ms. Preetika Dwivedi, AOR Mr. Abhishek Mohanty, Adv. Mr. Milind Kumar, AOR Mr. Nishe Rajen Shonker, AOR Ms. Anu K.Joy, Adv. Mr. Alim Anvar, Adv. Mr. Rajiv Shankar Dvivedi, AOR Mr. Barun Sinha, Adv. Mr. Sushant Kumar Sarkar, Adv. Mr. Rishabh Jain, Adv. Ms. Arti Dwivedi, Adv. Mr. Ajay Pal, AOR Mr. Avijit Mani Tripathi, Adv. Mr. T.K. Nayak, Adv. Mr. Marbiang Khongwir, Adv.

Case BriefsSupreme Court

Supreme Court: In a landmark ruling on COVID-19 vaccination drive, the bench of L. Nageswara Rao* and BR Gavai, JJ has held that bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.

The Court, however, cautioned that,

“This judgment is not to be construed as impeding, in any manner, the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus in public interest, which may also take the form of restrictions on unvaccinated people in the future, if the situation so warrants. Such restrictions will be subject to constitutional scrutiny to examine if they meet the threefold requirement for intrusion into rights of individuals.”

The ruling came in the writ petition wherein the Petitioner highlighted the adverse consequences of emergency approval of vaccines in India, the need for transparency in publishing segregated clinical trial data of vaccines, the need for disclosure of clinical data, lack of transparency in regulatory approvals, minutes and constitution of the expert bodies, imperfect evaluation of Adverse Events Following Immunisation (AEFIs) and vaccine mandates in the absence of informed consent being unconstitutional. The Petitioner further stated in the Writ Petition that coercive vaccination would result in interfering with the principle of informed self-determination of individuals, protected by Article 21 of the Constitution of India.

Is the Vaccination Drive Arbitrary?

On the basis of substantial material reflecting the near-unanimous views of experts on the benefits of vaccination in addressing severe disease from the infection, reduction in oxygen requirement, hospital and ICU admissions, mortality and stopping new variants from emerging, the Court was satisfied that the current vaccination policy of the Union of India is informed by relevant considerations and cannot be said to be unreasonable or manifestly arbitrary.

Personal autonomy and public health

  1. Bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated.
  2. Personal autonomy of an individual involves the right of an individual to determine how they should live their own life, which consequently encompasses the right to refuse to undergo any medical treatment in the sphere of individual health.
  3. Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid vaccination, without anyone physically compelling them to be vaccinated. However, if there is a likelihood of such individuals spreading the infection to other people or contributing to mutation of the virus or burdening of the public health infrastructure, thereby affecting communitarian health at large, protection of which is undoubtedly a legitimate State aim of paramount significance in this collective battle against the pandemic, the Government can regulate such public health concerns by imposing certain limitations on individual rights that are reasonable and proportionate to the object sought to be fulfilled.

Restrictions on unvaccinated persons and impeding their right to access public resources

Neither the Union of India nor the State Governments produced any material to justify the discriminatory treatment of unvaccinated individuals in public places by imposition of vaccine mandates.

“No doubt that when COVID-19 vaccines came into the picture, they were expected to address, and were indeed found to be successful in dealing with, the risk of infection from the variants in circulation at the time. However, with the virus mutating, we have seen more potent variants surface which have broken through the vaccination barrier to some extent.”

Hence, the restrictions on unvaccinated individuals imposed through vaccine mandates cannot be considered to be proportionate, especially since both vaccinated and unvaccinated individuals presently appear to be susceptible to transmission of the virus at similar levels.

It has, hence, been directed that till the infection rate and spread remains low, as it is currently, and any new development or research finding comes to light which provides the Government due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals in furtherance of the continuing efforts to combat this pandemic, all authorities in the country, including private organisations and educational institutions, should review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources.

Non-disclosure of segregated clinical trial data in public domain

The results of Phase III clinical trials of the vaccines in question have been published, in line with the requirement under the statutory regime in place, the GCP guidelines and the WHO Statement on Clinical Trials. The material provided by the Union of India, comprising of minutes of the meetings of the SEC, do not warrant the conclusion that restricted emergency use approvals had been granted to COVISHIELD and COVAXIN in haste, without thorough review of the relevant data. Relevant information relating to the meetings of the SEC and the NTAGI are available in public domain and therefore, challenge to the procedures adopted by the bodies while granting regulatory approval to the vaccines on the ground of lack of transparency cannot be entertained.

However, subject to the protection of privacy of individual subjects and to the extent permissible by the 2019 Rules, the relevant data which is required to be published under the statutory regime and the WHO Statement on Clinical Trials shall be made available to the public without undue delay, with respect to the ongoing post-marketing trials of COVAXIN and COVISHIELD as well as ongoing clinical trials or trials that may be conducted subsequently for approval of other COVID19 vaccines / vaccine candidates.

Monitoring of Adverse Events Following Immunisation (AEFIs)

The Court refused to accept the sweeping challenge to the monitoring system of AEFIs being faulty and not reflecting accurate figures of those with severe reactions or deaths from vaccines.

“The role of the Pharmacovigilance Programme of India and the CDSCO, as elaborated upon by the Union of India, collates and studies previously unknown reactions seen during monitoring of AEFIs at the time of vaccine administration and we trust the Union of India to ensure that this leg of the AEFI surveillance system is not compromised with, while meeting the requirements of the rapid review and assessment system followed at the national level for AEFIs.”

Information relating to adverse effects following immunisation

Information relating to adverse effects following immunisation is crucial for creating awareness around vaccines and their efficacy, apart from being instrumental in further scientific studies around the pandemic.

Recognising the imperative need for collection of requisite data of adverse events and wider participation in terms of reporting, the Union of India has been directed to facilitate reporting of suspected adverse events by individuals and private doctors on an accessible virtual platform. These reports shall be made publicly accessible, without compromising on protecting the confidentiality of the persons reporting, with all necessary steps to create awareness of the existence of such a platform and of the information required to navigate the platform to be undertaken by the Union of India at the earliest.

Paediatric vaccination

The decision taken by the Union of India to vaccinate children in India is in tune with global scientific consensus and expert bodies like the WHO, the UNICEF and the CDC and it is beyond the scope of review for this Court to second-guess expert opinion, on the basis of which the Government has drawn up its policy.

Keeping in line with the WHO Statement on Clinical Trials and the extant statutory regime, the Court directed the Union of India to ensure that key findings and results of the relevant phases of clinical trials of vaccines already approved by the regulatory authorities for administration to children, be made public at the earliest, if not already done.

[Jacob Puliyel v. Union of India, 2022 SCC OnLine SC 533, decided on 02.05.2022]

*Judgment by: Justice L. Nageswara Rao

Counsels

For Petitioner: Advocate Prashant Bhushan,

For UOI: Solicitor General Tushar Mehta

For Respondent No. 4: Senior Advocate S. Guru Krishnakumar

For Tamil Nadu: Additional Advocate General Amit Anand Tiwari

For Maharashtra: Advocate Rahul Chitnis

For Madhya Pradesh: Advocate Mrinal Gopal Elker,

For Respondent no. 5: Advocate Shyel Trehan

Experts CornerSanjay Vashishtha

Introduction

On 28-3-2022, the Criminal Procedure (Identification) Bill, 2022 was tabled in the Lok Sabha[1]. The Bill seeks to repeal the Identification of Prisoners Act of 1920, which permits the acquisition of personally identifiable information about certain people, such as criminals, in order to conduct criminal investigations. The Bill was introduced with the objective of authorising the taking of measures of convicts and other persons for the sake of identification and investigation in criminal circumstances, as well as the preservation of records, among other things. This Bill expands the reach of such information as well as the people who can get it. It authorises the National Crime Records Bureau to collect, store, and maintain specified records. It must have been developed to allow for the use of contemporary technology to take and record accurate body measurements. Finger imprints, palm print and footprint impressions, photos, iris and retina scan, physical, biological samples and their analysis are all included in the Bill’s definition of “measurements”.

Key factors of the Bill

It has surfaced:

  • To allow for the application of contemporary technology to take and record accurate body measurements.
  • Invest the National Crime Records Bureau (NCRB) with the authority to collect, store, and preserve records of measurements, as well as to share, disseminate, destroy, and dispose of records.
  • To allow a Magistrate to order anyone to take measures; additionally, a Magistrate can order law enforcement officials to collect in the case of a specific category of convicted and non-convicted individuals, “fingerprints, palm print impressions, footprint impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting, or any other examination”.
  • To any person who resists or refuses to offer measures should be able to be measured by police or jail authorities.

For the purposes of inquiry, the Bill also permits police to keep track of signatures, handwriting, and other behavioural characteristics referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973.

On the direction of a Magistrate, finger and footprint impressions, as well as a limited category of convicted and non-convicted persons’ pictures, are permitted.

According to the Bill’s criteria, anyone convicted, imprisoned, or held under any preventive detention act will be obliged to give “measurements” to a police officer or a prison official.

Necessity of the Bill

  • The Bill was introduced to enable for the use of modern means to capture and record acceptable body dimensions, as the existing law, the “Identification of Prisoners Act, 1920,” only allowed for the capturing of fingerprint and footprint impressions of a select group of convicted individuals.
  • In addition, the Bill aims to broaden the “ambit of persons” who can be measured, which will aid investigative authorities in gathering adequate legally admissible evidence and establishing the accused person’s crime.
  • In addition, the Bill stipulates legal authority for taking proper body measurements of those who are compelled to submit such measurements, which would improve the efficiency and speed of criminal investigations while also enhancing the conviction rate.

Constitutional validity of the Bill with respect to privacy

By altering the Act’s scope and repealing it, the legislation has expanded the jargons of the Identification of Prisoners Act of 1920. The Bill has defined the term measurements under Section 2(1)(b), which includes finger impressions, palm impressions, foot impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes such as signatures, handwriting, or any other examination referred to in Section 53 or Section 53-A of the Code of Criminal Procedure, 1973.

The legislature’s intention to make the word measurement exclusive in nature by including general words like physical and biological samples could lead to narcoanalysis and brain mapping through the use of force implicitly in collection, directly violating Article 20(3), right to self-incrimination, and Article 21, right to life, of the Indian Constitution.

According to Article 20(3) of the Constitution of India (COI), no person accused of a crime may be forced to testify against himself. It has become a source of concern regarding the privacy of individuals, which is in jeopardy.

  • It should be noted that it is also in violation of the United Nations Charter’s Human Rights requirements. Privacy is a fundamental human right, and there are various aspects of privacy such as privacy of space, privacy of body, privacy of information, and privacy of choice that have evolved over time through a catena of Supreme Court judgments beginning with K. Gopalan v. State of Madras[2], Kharak Singh v. State of U.P.[3], Charles Sobraj v. Supt. Central Jail[4], Sheela Barse v. State of Maharashtra[5] and Pramod Kumar Saxena v. Union of India[6].
  • In addition, Clause 4(2) of the Bill allows for the retention of measurement records for 75 years, which is a clear infringement of the right to be forgotten, as recognised by the Supreme Court in S. Puttaswamy v. Union of India[7].
  • Furthermore, it contradicts the core concept of criminal law that no one is guilty until proven guilty in a court of law.
  • Further, In Narayan Dutt Tiwari Rohit Shekhar[8], the Court declared that nobody should be compelled to be subjected to any techniques in question in any circumstances, even when it is in the context of an investigation in a criminal matter. Such actions would constitute an unjustified infringement into an individual’s personal liberty.
  • In Kharak Singh State of U.P.[9], the Court determined that the term “life” refers to more than animal existence. The resistance to its loss spreads to all of our limbs and faculties, allowing us to appreciate life. The right to life, it could be argued, does not only apply to animals. It refers to more than a person’s physical well-being.
  • The Supreme Court added a new dimension to Article 21 in Maneka Gandhi Union of India[10], declaring that the “right to life or live” includes not just bodily existence but also the right to live with dignity. This Bill puts a person’s life on hold, and he will always be under government observation, which is a serious invasion of privacy.
  • The Supreme Court ruled in State of A.P. Challa Ramakrishna Reddy[11] that one of the basic human rights guaranteed to everyone is the right to life. It is so fundamental that no one, including the Government, has the authority to violate it. Even when incarcerated, a person retains his or her humanity. He retains his human status and is thus entitled to all fundamental rights, including the right to life.

Conclusion

As a result, the Bill was introduced in order to allow for the use of modern means to capture and record acceptable body dimensions, with the goal of authorising the taking of measurements of convicts and other people for the purposes of identification and investigation in criminal cases, as well as the preservation of records, among other things. The Bill has infringed citizens’ fundamental rights by granting the State broad powers to store prisoner records and conduct physical and biological tests with the implied force of law, which is contrary to the rule of law and arbitrary in character. People do not lose their humanity while they are imprisoned.

The Supreme Court of India, as well as many other Indian courts, have reaffirmed this position in a number of cases to ensure that prisoners do not become victims. Since then, the legislature has been unable to qualify the intangible differentia and rational connection tests. As a result, it is a blatant infringement of the citizen’s fundamental rights stated in Sections 14, 19, 20(3), and 21 of the Constitution of India.

† Advocate is a practicing counsel at the Supreme Court of India, BA LLB (Hons.), LLM in Comparative Criminal Law from McGill University, Canada and MSc, Criminology and Criminal Justice from University of Oxford and Research Associate (India) University of Oxford, United Kingdom.

[1] See HERE .

[2] AIR 1950 SC 27.

[3] AIR 1963 SC 1295 : (1964) 1 SCR 332.

[4] (1978) 4 SCC 104.

[5] (1983) 2 SCC 96.

[6] (2008) 9 SCC 685.

[7] (2017) 10 SCC 1.

[8] (2012) 12 SCC 554.

[9] AIR 1963 SC 1295 : (1964) 1 SCR 332.

[10] (1978) 1 SCC 248.

[11] (2000) 5 SCC 712.

Hot Off The PressNews

Karnataka High Court formulated a few questions:

  1. Whether wearing Hijab is a part of essential religious practise in Islamic faith protected under Article 25 of the Constitution?

  2. Whether the prescription of the School Uniform is not legally permissible as being violative of the petitioner’s fundamental rights inter alia guaranteed under Article 19(1)(a) and Article 21 i.e. Right to Privacy of the Constitution?

  3. Whether the G.O. apart from being incompetent is issued without application of mind and is further manifestly arbitrary and therefore violates Articles 14 and 15 of the Constitution?

  4. Whether any case is made out in WP 2146 of 2022 sought the issuance of direction for initiating disciplinary inquiry against respondents 6 to 14 and for issuance of quo warranto against respondents 15 and 16?

Answers

  • Wearing of Hijab by Muslim Women does not form a part of essential religious practise in Islamic faith.

  • Prescription of the School Uniform is only a reasonable restriction constitutionally permissible to which the students cannot object to.

  • Government has power to issue the impugned Order dated 05.2.2022 and that no case is made out for its invalidation.

  • No case is made out in WP No.2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents 6 to 14. The prayer for issuance of Writ of Quo Warranto against respondents 15 and 16 is rejected being not maintainable.

[Resham v. State of Karnataka, WP No. 2347 of 2022, decided on 15-3-2022]

Hijab Case | When Karnataka High Court temporarily restrained students from wearing hijab, religious flags, saffron shawls, etc.: Read Court’s interim order || A Recap

Hijab Case | Karnataka High Court to pronounce Judgment today | Whether wearing of Hijab an essential religious practise of Islam?

Case BriefsSupreme Court

Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,

 “We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”

Background

The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded  that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.

Apple of Discord and Litigation History

It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.

It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.

Doctrine of Best Interest

The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.

Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.

Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.

Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.

Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?

Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.

Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.

Factual Analysis

Considering the submissions made by both the parties and evidence available on record the Bench made following observations:

  • It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
  • Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
  • The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
  • The respondent had financial resources to maintain the appellant and the minor child in USA.
  • The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
  • On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.

Conclusion

In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:

  • The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
  • If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
  • If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
  • If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
  • In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.

Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.

[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]

*Judgment by: Justice Abhay S. Oka

Kamini Sharma, Editorial Assistant has put this report together 

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Order of the Family Court

The instant revision petition had been file by the petitioner-wife against the order of the Family Court whereby the husband of the petitioner, respondent herein, had been allowed to prove the Compact Disc pertaining to conversation between him and the wife subject to the condition of its correctness.

A petition was filed by the petitioner’s husband under Section 13 of the Hindu Marriage Act, 1955 for seeking divorce on the ground that his wife had been treating him with cruelty. With an intention to expedite the proceedings, the respondent-husband had moved an application seeking permission to submit his supplementary affidavit by way of examination-in-chief along with CD and transcriptions of conversations so recorded in the memory cards/chips of the respective mobile phones.

The said application was allowed by the Family Court observing that the husband was allowed to prove the CD pertaining to the conversations between him and his wife subject to the condition of correctness and that strict principles of evidence are not applicable to the proceedings before the Family Court by virtue of Sections 14 and 20 of the Family Court Act.

Are Recordings of Private Conversation between Husband and Wife permissible as Evidence?

The petitioner contended that the evidence sought to be led by the husband was completely beyond pleadings, therefore, absolutely impermissible as the said CD’s were a clear cut infringement and downright invasion of the her privacy thus a violation of Article 21 of the Constitution, as the conversations had been recorded without her knowledge and consent.

The petitioner argued that the Family Court had given a complete go bye to Section 65 of the Evidence Act, 1882 because if recording had been done through a mobile phone, CD’s of the recording and transcripts thereof in any case, could not be accepted as evidence thereof. Moreover, there was non-compliance of Section 65-B of the Act, 1882.

Right to Privacy v/s Recordings of Personal Conversation as Evidence

Admittedly, there was no mention of the conversations recorded by the husband between the years 2010 to 2016 in the said petition. It was thus evident that the husband was well aware of these conversations which could very well have formed part of the pleadings at the very outset, but clearly did not find mention. Furthermore, there was no averment regarding these conversations in the amended petition or even in the affidavit tendered in examination-in-chief. Therefore, the Bench opined that the CD’s in question could not be permitted in evidence.

Opining that acceptance of the CD in question would amount to a clear breach of fundamental right of the petitioner-wife i.e., right to privacy, as had been held the Supreme Court in People’s Union for Civil Liberties v. Union of India, (1997)1 SCC 301. Furthermore, the Bench said,

“It cannot be said or ascertained as to the circumstances in which the conversations were held or the manner in which response elicited by a person who was recording the conversations, because it is evident that these conversations would necessarily have been recorded surreptiously by one of the parties.”

In Tripat Deep Singh v. Paviter Kaur, 2018 (3) RCR (Civil) 71, it was held that conversations between husband and wife in daily routine cannot be made the basis of or considered for deciding a petition under Section 13 of the Act. Reference to Section 122 of the Evidence Act, had been succinctly dealt with by the Rajasthan High Court in Vishal Kaushik v. Family Court, 2015 SCC OnLine Raj 445, wherein the Court had heal that,

“The exception to privileged communication between husband and wife carved out in Section 122 of the Indian Evidence Act, which enables one spouse to compel another to disclose any communication made to him/her during marriage by him/her, may be available to such spouse in variety of other situations, but if such communication is a tape recorded conversation, without the knowledge of the other spouse, it cannot be, admissible in evidence or otherwise received in evidence.”

Verdict

Keeping in view the factual matrix of the case, the Bench opined that it could not be said the Family Court is not bound by strict rules of evidence and is at liberty to accept the CD in evidence which is a clear cut infringement of the right of privacy of the wife.

Therefore, acceptance of the CD by the Family Court was held to be unjustified and the impugned order was set aside. The application filed by the respondent-husband for submitting the said CD was dismissed and the instant revision petition was allowed. The Family Court was directed to take steps for expeditious disposal of the petition filed under Section 13 of the Act, preferably within six months. [Neha v. Vibhor Garg, CR No. 1616 of 2020, decided on 12-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner-wife: Rajan Bansal, Advocate

For the Respondent-husband: Sumeet Goel, Sr. Advocate with Anubhav Bansal, Advocate

Case BriefsHigh Courts

Madras High Court: Expressing that right to life and personal liberty enshrined in Article 21 of the Constitution of India includes the right to relax, G.R. Swaminathan, J., held that the said right can be exercised in a variety of forms.

Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.

 Few Words from the Madras High Court:

After a tiring day trekking in the forest, Lord Rama chose a resting place. He dropped his bow and arrows on the ground. When he woke up the next morning, he found that one of his arrows had fatally pierced a frog. The frog was about to breathe its last. The anguished Rama asked the frog as to why it did not raise an alarm. The innocent frog replied, “when others hurt me, I call your name “Rama Rama”-but when you are the source of trouble-who else can I call?.

When individual liberty is threatened by legislative or executive action, one turns to judiciary for relief and remedy, in the Supreme Court decision of State of Madras v. V.G. Row, AIR 1952 SC 196, Justice M. Patanjali Sastri, CJ remarked that the Supreme Court had been assigned the role of a sentinel on the qui vive as regards the fundamental rights.

Bench stated that the above-stated applies with equal force to every court and not just the constitutional courts.

In the present matter, the petitioner was running a Spa. Originally, there was no law regulating the said business and no license was required from any governmental authority, since vide Gazette Notification No. 252 obtaining of license had been made mandatory, the petitioner applied for such license.

Since no action was taken on the petitioner’s request, he filed the present petition for directing the police authority to issue “no objection certificate”.

The Bench noted that a number of orders in the past were passed wherein the authorities concerned were directed to issue “no objection certificate” if the applicant satisfied all the requirements. Hence, this Court disposed of the petition on 21-12-2021.

Though the Government counsel mentioned that another Judge of this Court issued the following directions in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015:

“1)The respondents are directed to issue appropriate orders to all the Spa and Massage centers, Therapy centers etc., across the State of Tamil Nadu to install CCTV cameras which must be functional in all circumstances.

2)Appropriate directions are to be issued to ensure that these Spa, Massage centers, Therapy centers etc., are conducting their business activities in a transparent manner and avoid secluded or closed rooms paving way for illegal activities.

3)In the event of any reasonable suspicion, information or complaint, the Police authorities are directed to initiate all appropriate actions in the manner known to law.”

Bench stated that the decision in C.P. Girija v. Superintendent of Police, WP No. 37089 of 2015 appeared to run counter to the law laid down by the 9-Judge Bench Judgment of the Supreme Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

In Court’s opinion,

The installation of CCTV equipment inside premises such as a spa would unquestionably infract upon a person’s bodily autonomy. These are inviolable spaces where the prying eye of the state simply cannot be allowed to enter.

Further elaborating, the Court stated that, the notification issued by the Government contemplated installation of CCTV cameras only at the entry and exit points. It consciously caveats that this would be without prejudice to the individual’s privacy.

Thus, the executive while enacting subordinate legislation has been conscious of the privacy concerns of the citizens.

No right including a fundamental right can be absolute.

The Bench added that a decision to install a CCTV camera which has a bearing on a person’s privacy requires the most careful of considerations—it requires the government to apply its mind prudently and determine what manner of regulations ought to be put in place for its proper use.

Right to Relax

The K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1  verdict posits that there are three essential features of privacy – repose, sanctuary and intimate decisions.

“Repose” refers to freedom from unwarranted attention, “sanctuary” refers to the freedom of keeping things to oneself and “intimate decisions” refers to the freedom of autonomy to make personal life choices.

The right of an individual to avail means of relaxation (in this case, via spa) falls within the ambit of the right of repose and sanctuary. Therefore, any intrusion into the right to relax shall necessarily have to satisfy the test of legality, legitimate aim and proportionality.

 Morality

High Court added that the Supreme Court decision of Govind v. State of M.P., (1975) 2 SCC 148, pondered over the question of whether concerns of breach of morality can be made a ground for intruding into one’s private space.

When the Govind decision was rendered, privacy was not recognised as a fundamental right.

Post the Supreme Court decision in K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, privacy right can be curtailed only on grounds set out therein. Morality cannot be invoked as a mere incantation to justify such curtailment. This was also the essence of the landmark “Section 377” verdict of the Supreme Court in which it was held that in matters of one’s private affairs, constitutional morality shall trump public morality, Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Lastly, the Bench held that when the notification issued by appropriate authority is holding the field, it may not be open to the Court to supplement the same. In the said circumstances, the first respondent is directed to consider the petitioner’s representation and dispose of the same and if the first respondent issues ‘No Objection Certificate’ and the competent authority grants license in favour of the petitioner, the respondents will not interfere with the petitioner’s business so long as it is running in the manner known to law.

Therefore, the petition was disposed of in view of the above discussion. [Payel Biswas v. Commr. Of Police, 2022 SCC OnLine Mad 76, decided on 4-1-2022]

Advocates before the Court:

For Petitioner: Mr N. Edwin Jeyakumar, for Mr S.Leonard Vasanth.

For Respondents: Mr M. Sakthi Kumar, Government Advocate.

Case BriefsSupreme Court

“If you want to keep a secret, you must also hide it from yourself.”

­George Orwell, 1984

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

Here are five unmissable quotes on right to privacy from the Pegasus order

  • Members of a civilized democratic society have a reasonable expectation of privacy. Privacy is not the singular concern of journalists or social activists. Every citizen of India ought to be protected against violations of privacy.
  • We live in the era of information revolution, where the entire lives of individuals are stored in the cloud or in a digital dossier. We must recognize that while technology is a useful tool for improving the lives of the people, at the same time, it can also be used to breach that sacred private space of an individual.
  • The right to privacy is directly infringed when there is surveillance or spying done on an individual, either by the State or by any external agency.
  • In a democratic country governed by the rule of law, indiscriminate spying on individuals cannot be allowed except with sufficient statutory safeguards, by following the procedure established by law under the Constitution.
  • It is undeniable that surveillance and the knowledge that one is under the threat of being spied on can affect the way an individual decides to exercise his or her rights. Such a scenario might result in self-censorship. This is of particular concern when it relates to the freedom of the press, which is an important pillar of democracy. Such chilling effect on the freedom of speech is an assault on the vital public-watchdog role of the press, which may undermine the ability of the press to provide accurate and reliable information.

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, here’s why it eventually decided to step in.

Pegasus| ‘National security cannot be the bugbear that the judiciary shies away from’. Here’s why the initially reluctant Supreme Court finally decided to interfere

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

“This Court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights.”

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

The what, the why, the who and the how: All you need to know about SC’s independent probe order in Pegasus case

The Controversy

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

On 18th  July 2021, a consortium of nearly journalistic organizations from around the world, including   one Indian organization, released the results of a long investigative effort indicating the alleged use of the Pegasus software on several private individuals. This investigative effort was based on a list of some   50,000 leaked numbers which were allegedly under surveillance by clients of the NSO Group through the Pegasus software. Initially, it was discovered that nearly 300 of these numbers belonged to Indians, many of whom are senior journalists, doctors, political persons, and even some Court staff. At the time of filing of the Writ Petitions, nearly 10 Indians’ devices were allegedly forensically   analyzed   to confirm the presence of the Pegasus software.

Union of India’s Stand

Union of India, through the  Minister of Railways, Communications and Electronics and Information Technology, took the stand in Parliament on 18th  July 2021, when asked about the alleged cyberattack and spyware use, that the reports published had no factual basis. The Minister also stated that the Amnesty report itself indicated that the mere mention of a particular number in the list did not confirm whether the same was infected by Pegasus or not. Further, the Minister stated that NSO had itself factually contradicted many of the claims made in the Amnesty report. Finally, he stated that the Indian statutory and legal regime relating to surveillance and interception of communication is extremely rigorous, and no illegal surveillance could take place.

Supreme Court’s decision to interfere

Material on record

While the Supreme Court was initially reluctant in interfering in the matter due to lack of material placed before it, it eventually decided to step in after the subsequently filed petitions, as well as additional documents filed by others, brought on record certain materials that could not be brushed aside, such as the reports of reputed organizations like Citizen Lab and affidavits of experts.

Additionally, the sheer volume of cross-referenced and crossverified reports from various reputable news organizations across the world along with the reactions of foreign governments and legal institutions also moved us to consider that this is a case where the jurisdiction of the Court may be exercised.

“Of course, the learned Solicitor General suggested that many of these reports are motivated and self-serving. However, such an omnibus oral allegation is not sufficient to desist from interference.”

National Security vis-à-vis Citizen’s Right to Privacy

Union of India was asked to clarify its stand regarding the allegations raised, and to provide information to assist the Court regarding the various actions taken by it over the past two years, since the first disclosed alleged Pegasus spyware attack. It was made clear to the Solicitor General on many occasions that it would not push the Union of India to provide any information that may affect the national security concerns of the country.

However, despite the repeated assurances and opportunities given, ultimately the Union of India has placed on record what they call a “limited affidavit”, which does not shed any light on their stand or provide any clarity as to the facts of the matter at hand.

“If the Respondent¬Union of India had made their stand clear it would have been a different situation, and the burden on us would have been different. Such a course of action taken by the Respondent¬Union of India, especially in proceedings of the present nature which touches upon the fundamental rights of the citizens of the country, cannot  be accepted.”

Union of India has justified its non¬submission of a detailed counter affidavit by citing security concerns. However,

“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the State gets a free pass every time the spectre of “national security” is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this Court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review.”

Of course, the Union of India may decline to provide   information   when   constitutional   considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but they must also prove and justify the same in Court on affidavit. The Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court.

“The mere invocation of national security by the State does not render the Court a mute spectator.”

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has appointed an Expert Committee to look into the truth or falsity of the allegations in the Pegasus Spyware case, “taking into account the public importance and the alleged scope and nature of the large-scale violation of the fundamental rights of the citizens of the country.”

Here is all you need to know about the case and the order of the Court

The Controversy

The Pegasus suite of spywares, being produced by an Israeli Technology firm, viz., the NSO Group, can allegedly be used to compromise the digital devices of an individual through zero click vulnerabilities, i.e., without requiring any action on the part of the target of the software. Once the software infiltrates   an individual’s device, it allegedly has the capacity to access the entire stored data on the device, and has real time access to emails, texts, phone calls, as well as the camera and sound recording capabilities of the device. Once the device is infiltrated using Pegasus, the entire control over the device is allegedly handed over to the Pegasus user who can then remotely control all the functionalities of the device and switch different features on or off.

The NSO Group purportedly sells this extremely powerful software only to certain undisclosed Governments and the end user of its products are “exclusively   government intelligence and law enforcement agencies” as per its own website. Reports indicate that individuals from nearly 45 countries are suspected to have been affected.

Why?

The compelling circumstances that have weighed with to appointed an Expert Committee:

  1. Right to privacy and freedom of speech are alleged to be impacted, which needs to be examined.
  2. The entire citizenry is affected by such allegations due to the potential chilling effect.
  3. No clear stand taken by the Respondent¬Union of India regarding actions taken by it.
  4. Seriousness accorded to the allegations by foreign countries and involvement of foreign parties.
  5. Possibility that some foreign authority, agency or private entity is involved in placing citizens of this country under surveillance.
  6. Allegations that the Union or State Governments are party to the rights’ deprivations of the citizens
  7.  Limitation under writ jurisdiction to delve into factual aspects. For instance, even the question of usage of the technology on citizens, which is the jurisdictional fact, is disputed and requires further factual examination.

Who?

“… it was an extremely uphill task to find and select experts who are free from prejudices, are independent and competent.”

Rather than relying upon any Government agencies or any, the Court constituted the Committee and shortlisted expert members based on biodatas and information collected independently. While the Court shortlisted and chose the most renowned experts available to be a part of the Committee, it also left it to the discretion of the learned overseeing judge to take assistance from any expert, if necessary, to ensure absolute transparency and efficiency.

Head: Justice R.V. Raveendran, former Judge, Supreme Court of India, assisted by:

  1. Mr. Alok Joshi, former IPS officer (1976 batch) with immense and diverse investigative experience and technical knowledge. He has worked as the Joint Director, Intelligence Bureau, the Secretary(R), Research and Analysis Wing and Chairman, National Technical Research Organisation.
  2. Dr. Sundeep Oberoi, Chairman, ISO/IEC JTC1 SC7 (International Organisation of   Standardisation/ International   Electro¬Technical   Commission/Joint Technical Committee), a sub¬committee which develops and facilitates standards within the field of software products and systems. He is also a part of the Advisory Board of Cyber Security Education and Research Centre at Indraprastha Institute of Information Technology, Delhi and is a globally recognized as a cyber security expert.

Three members of the Technical Committee:

  1. Dr. Naveen Kumar Chaudhary, Professor (Cyber Security and Digital Forensics) and Dean, National Forensic Sciences University, Gandhinagar, Gujarat. He has over two decades of experience as an academician, cyber security enabler and cyber security expert and specializes in cyber security policy, network vulnerability assessment and penetration testing.
  2. Dr. Prabaharan P., Professor (School of Engineering), Amrita Vishwa Vidyapeetham, Amritapuri, Kerala. He has two decades of experience in computer science and security areas. His areas of interest are malware detection, critical infrastructural security, complex binary analysis, AI and machine learning.
  3. Dr. Ashwin Anil Gumaste, Institute Chair Associate Professor (Computer Science and Engineering), Indian Institute of Technology, Bombay, Maharashtra. He has been granted 20 US patents and has published over 150 papers and authored 3 books in his field. He has received several National awards including the Vikram Sarabhai Research Award (2012) and Shanti Swarup Bhatnagar Prize for Science and Technology (2018). He has also held the position of Visiting Scientist at the Massachusetts Institute of Technology, USA.

What?

The terms of reference of the Committee are as follows:

To enquire, investigate and determine:

  1. Whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes not explicitly stated herein?
  2. The details of the victims and/or persons affected by such a spyware attack.
  3. What   steps/actions   have   been   taken   by   the Respondent-Union of India after reports were published in the year 2019 about hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware.
  4. Whether any Pegasus suite of spyware was acquired by the Respondent-Union of India, or any State Government, or any central or state agency for use against the citizens of India?
  5. If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made?
  6. If any domestic entity/person has used the spyware on the citizens of   this   country,   then   is   such a use authorised?
  7. Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate.

To make recommendations:

  1. Regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing improved right to privacy.
  2. Regarding enhancing and improving the cyber security of the nation and its assets.
  3. To ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with law, by State and/or non-State entities through such spywares.
  4. Regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.
  5. Regarding the setting up of a well¬equipped independent premier agency to investigate cyber security vulnerabilities, for threat assessment relating to cyberattacks and to investigate instances of cyberattacks in the country.
  6. Regarding any ad¬hoc arrangement that may be made by this Court as an interim measure for the protection of citizen’s rights, pending filling up of lacunae by the Parliament.
  7. On any other ancillary matter that the Committee may deem fit and proper.

How?

(1) The Committee constituted is authorised to ¬

(a) devise its own procedure to effectively implement and answer the Terms of Reference;

(b) hold such enquiry or investigation as it deems fit;and

(c) take statements of any person in connection with the enquiry and call for the records of any authority or individual.

(2)  Justice R. V. Raveendran, former Judge, Supreme Court of India will oversee the functioning of the Committee with respect to the methodology to be adopted, procedure to be followed, enquiry and investigation that is carried out and preparation of the report.

(3) The overseeing Judge is at liberty to take the assistance of any serving or retired officer(s), legal expert(s) or technical expert(s) in discharge of his functions.

(4) The overseeing Judge to fix the honorarium of the members of the Committee in consultation with   them, which shall be paid by the Respondent¬Union of India immediately.

(5) The Respondent¬Union of India and all the State Governments, as well as agencies/authorities under them, are directed to extend full facilities, including providing support with respect to infrastructure needs, manpower, finances, or any other matter as may be required  by the Committee or the overseeing former Judge to effectively and expeditiously carry out the task assigned to them by this Court.

(6) Mr. Virender Kumar Bansal, Officer on Special Duty/ Registrar, Supreme Court of India, to coordinate between the Committee, the learned overseeing Judge and the Central/State Governments to facilitate communication and ensure smooth functioning and expeditious response to, and implementation of,   requests made by the Committee, the learned overseeing Judge or other members, tasked to assist him.

The Committee has to prepare the report after a thorough inquiry and place it before the Supreme court, expeditiously.

The matter will next be taken up after 8 weeks.

[Manohar Lal Sharma v. Union of India, 2021 SCC OnLine SC 985, decided on 27.10.2021]

___________________________________________________________________________________________________________________

Counsels:

For petitioners: Senior Advocates Kapil Sibal, Shyam Divan, Rakesh Dwivedi, Dinesh Dwivedi, Meenakshi Arora, Colin Gonsalves, ML Sharma

For Union of India: Solicitor General Tushar Mehta

Case BriefsSupreme Court

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

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

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

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

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

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

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

Important Rulings

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

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

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

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

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

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

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

___________________________________________________________________________________

Counsels:

For appellant-plaintiff: Advocate Sunieta Ojha

For respondent – defendants: Senior Advocate Rameshwar Singh Malik

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

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

Facts

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

Issues

The issues before this Court for consideration are:

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

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

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

Observations

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

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

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

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

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

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

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

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

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

Appearances

For Petitioner(s): Mr. Gajendra Panwar

For Respondent(s): Mr. Arun Kumar

Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsHigh Courts

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

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

Right to be Forgotten?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principle of Open Justice

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanctity of an Original Record

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

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

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

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

Advocates before the Court:

For Petitioner: Mr.S.Jayavel

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

Punjab and Haryana High Court
Case BriefsHigh Courts

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

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

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

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

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

Analysis by the Court

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

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

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

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

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

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

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

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

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

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

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

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

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

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsel for the Petitioners: Manbir Singh Batth. Advocate

Counsel for the State: Monika Jalota, DAG, Punjab

Op EdsOP. ED.

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

 

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

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

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

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

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

Legal issue

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

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

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

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

The Court’s ruling in Virendra Khanna

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

 

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

 

To further its case, the prosecution argued:

 

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

(a) It is sanctioned by law.

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

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

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

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

 

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

 

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

Issue No.

Issue

Court’s decision and reasoning

1.

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

2.

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

3.

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

4.

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

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

 

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

 

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

 

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

 

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

 

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

 

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

5.

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

6.

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

 

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

7.

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

8.

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

 

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

9.

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

 

Comment

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

[1] 2021 SCC OnLine Kar 5032.

[2] AIR 1961 SC 1808.

[3] Id.

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

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

[6] AIR 1965 SC 1251.

[7] 2003 SCC OnLine Mad 936.

Case BriefsHigh Courts

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

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

Background

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

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

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

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

Right to Privacy

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

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

Whether a Court Order can be removed from Online Platforms? 

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

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

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

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

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

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

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

Advocates before the Court:

For the Petitioner: Sanjay Kumar

For the Respondents: Shiva Lakshmi

Central Information Commission
Case BriefsTribunals/Commissions/Regulatory Bodies

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

Facts of the Case

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

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

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

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

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

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

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

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

Decision

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

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

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

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

Case BriefsHigh Courts

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

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

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

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

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

Decision

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

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

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

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

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

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

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

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

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

Advocates who appeared before the Court: 

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

Counsel for Respondent: G.A.

Case BriefsCOVID 19Supreme Court

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

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

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

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

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

*Justice Ashok Bhushan has penned this judgment

For petitioner: Advocate Chinmoy Pradip Sharma

For Respondent: Solicitor General Tushar Mehta

For NCT OF Delhi: Advocate Chirag M. Shroff

Case BriefsHigh Courts

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

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

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

Factual Matrix

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

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

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

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

Objectionable Photos on Facebook

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

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

Analysis, Law and Decision

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

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

Right of the Victim

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

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

Right to Privacy | Right to get Deleted

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

Right to be Forgotten

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

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

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

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

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

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

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

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

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

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

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

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

Adding to its observations, Court stated that

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

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

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

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

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

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

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

Advocates who appeared in the matter:

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

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