9-judge bench Right to Privacy hearing concludes; Judgment reserved

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

Day 6, 02.08.2017

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

Day 5, 01.08.2017

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

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

Day 4, 27.07.2017

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

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

Day 3, 26.07.2017

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

Bench Rises. Hearing to continue tomorrow.

Day 2, 20.07.2017:

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

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

Day 1, 19.07.2017:

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

Source: twitter.com/prasanna_stwitter.com/SFLCin and twitter.com/gautambhatia88

 

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