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All Posts | Aug 30,2017

Celebrating the Right to be Let Alone

SFLC.in is holding a discussion on “Celebrating the Right to be Let Alone” on Saturday, September 02, 2017, from 4:00-6:00 PM at the SFLC.in premises at K-9, Second Floor, Birbal Road, Jangpura Extension, New Delhi -110014 near Jangpura Metro station – Gate no 2.

During this time, we will celebrate the recognition of right to privacy as a fundamental right, discuss the recent privacy judgment, its key takeaways, the impact it will have on the pending Aadhaar litigations, how it will affect various aspects of policy making and the way forward from here. Speakers would include experts from academia, civil society and law.

Please join us for an amazing discussion with food and drinks. As we have limited seating available for this discussion, we would request you to send us an RSVP latest by Friday, September 01, 2017. In case of any query and/or clarification, please do not hesitate to get in touch with us.

Please RSVP here: https://www.eventbrite.com/e/celebrating-the-right-to-be-let-alone-tickets-37412775619

All Posts | Aug 24,2017

[Press Release] Supreme Court holds that Right to Privacy is a Fundamental Right

In a historic judgment, the 9 judge bench of the Hon’ble Supreme Court has unanimously held that Right to Privacy is a fundamental right. This judgment was pronounced in a reference made to the 9 judge bench in a batch of Writ Petitions challenging the Aadhaar scheme. Dr. Nagarjuna G., member of the Governing body of SFLC.in and Mr.Vickram Crishna, member of the Advisory Board were petitioners in T.C. (Civil) No. 152 of 2013 that was referred to the Constitutional bench.

Mishi Choudhary, President, SFLC.in said:
“This is a milestone in a large history across the world on understanding of the right to privacy. The largest democracy in the world has now spoken on the question which we all face because 20th century constitutions, let alone earlier constitutions did not tend to speak of right to privacy and they certainly didn’t speak of it in terms which allowed its application to the needs of human beings in the 21st century networked society. Supreme Court of India has taken an enormous step which is going to be looked upon by societies of law around the world with enormous importance.”

It was incomprehensible that the existence of this right could be disputed in this day and age, specially considering the Government’s adoption of increasingly data-centric governance models. To transform India into a “digitally empowered society and a knowledge economy” as the Digital India initiative envisions, it is necessary to respect the individual’s right to privacy at all levels of governance, starting with the Constitution itself. The historic 9-judge Constitution Bench of the SC has done extremely well to recognize this fact, demonstrating yet again that the judiciary places the interest of the people above all else.

The petition in the case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. [W.P.(C). No. 494/2012], was filed in the Supreme Court to challenge various aspects of the Aadhaar Card scheme and its mandatory nature. The petitioners asserted that the collection of biometric data for Aadhaar card is violative of the right to privacy, which is implied under Article 21 as well as various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.

The three-Judge Bench hearing the Puttaswamy case observed in its order dated 11th August, 2015 that the matter entailed questions of importance involving interpretation of the Constitution. Hence, it referred those substantial questions of law to a Constitutional Bench of appropriate strength. Thereafter, a five-Judge Bench was constituted to determine the Bench strength eligible to decide the question of right to privacy. In light of previous judgments on the issue of privacy, this five-Judge Bench referred the question of whether there is a fundamental right to privacy to a larger nine-Judge Constitution Bench on 18th July, 2017.

For more information please contact:
Mishi Choudhary,
President,
SFLC.in
+1 917 325 8594
mishi@softwarefreedom.org

Image Credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Aug 24,2017

Supreme Court upholds Right to Privacy as a Fundamental Right

In a momentous judgment delivered in the case of K. S Puttaswamy (Retd.) & Anr. v. Union of India & Ors. [Writ Petition (Civil) No. 494 of 2012] today, the Supreme Court of India affirmed that citizens have a fundamental right to privacy. The nine-judge Constitution bench comprising Chief Justice of India (CJI) J.S Khehar, and Justices D.Y. Chandrachud, J. Chelameshwar, S.A. Bobde, A. Nazeer, R.K. Agrawal, R.F. Nariman, A.M. Sapre, and S.K. Kaul, held in a unanimous decision that Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty under Article 21 of the Constitution and other freedoms guaranteed under Part III of the Constitution.

The nine-judge Bench was tasked with answering the specific question of whether the previous Supreme Court judgments in M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] (an eight-judge Bench) and Kharak Singh v. State of Uttar Pradesh [AIR 1963 SC 1295] (a six-judge Bench) were correct in holding that the Constitution of India does not envisage a fundamental right to privacy.

CJI J.S. Khehar read out the operative portion of the judgment:

(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

The full text of the judgment is available here.

Image Credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Aug 19,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 6

A nine-judge Constitution Bench of the Supreme Court (SC), comprising Chief Justice of India (CJI) J.S. Khehar and Justices D.Y. Chandrachud, J. Chelameshwar, S.A. Bobde, A. Nazeer, R.K. Agrawal, R.F. Nariman, A.M. Sapre, and S.K. Kaul, heard arguments today on whether Indian citizens enjoy a fundamental right to privacy. This question, among others, was referred to a Constitution Bench by an SC order in August 2015, while hearing a batch of petitions led by Justice K.S. Puttaswamy and Ors. v. Union of India and Ors [W.P.(C). No. 494/2012] that challenged various aspects of the Aadhaar scheme. A Constitution Bench of five-judges was subsequently formed by the CJI on July 12 for the purpose, and in its first hearing held on July 18, the five-judge Bench referred the narrow issue of right to privacy to a larger nine-judge Bench. The nine-judge Bench is now tasked with answering the specific question of whether two previous SC judgments [M.P. Sharma v. Satish Chandra (AIR 1954 SC 300), eight-judge Bench; Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295), six-judge Bench] that held that the Constitution of India does not envisage a fundamental right to privacy holds true today.

Today’s arguments began with Senior Advocate Gopal Subramanium submitting on behalf of the petitioners that the SC’s decision in M.P. Sharma, was based on the contemporary view that fundamental rights must be seen as being separate and distinct from one another and that Article 21 of the Constitution (Right to Life and Personal Liberty, in which right to privacy is said to inhere) is merely a residual right. He pointed out that M.P. Sharma was concerned primarily with whether the Criminal Procedure Code’s provisions on search and seizure violated the right against self-incrimination, in which context the SC observed that the Indian Constitution does not contain any provisions like the American Fourth Amendment, and therefore does not guarantee a fundamental right to privacy. In the Kharak Singh decision that dealt with surveillance by the state, while the majority of judges held that the Constitution does not provide for a right to privacy, Justice Subba Rao wrote in dissent that Article 21 is not a residual right but a full-fledged one, and said that privacy is a facet of liberty. Mr. Subramanium submitted that liberty and privacy are pre-existing natural rights rather than rights that have been conferred by the state, and that if liberty is a fundamental value of our Constitution, then privacy is inherent in that value. That said, privacy is not a penumbral right that exists in the shadow of other rights, rather it is the essence of liberty.

Mr. Subramanium then drew attention to the words “liberty” and “dignity” as they appear in the Preamble to the Constitution and said they are intended to convey an inherent right recognized by the Constitution. Privacy, he said, is embedded in both these words – a fact that was reflected in both Govind v. State of MP (AIR 1975 SC 1378) and the dissenting opinion in Kharak Singh. Other words that appear in the Preamble, namely “democratic” and “republic”, also invoke the idea of liberty, as does its guarantee of freedom of thought, which cannot be invoked without liberty and privacy. Speaking on the conjunction of Articles 14 (Right to Equality), 19 (Right to Freedom) and 21 of the Constitution, Mr. Subramanium argued that these rights can only exist under limited government, and that after the SC’s decision in Maneka Gandhi v. Union of India (AIR 1978 SC 597), they must be read together. The right to equal protection under law guaranteed by Article 14 also protects liberty, and the exercise of freedoms guaranteed by Article 19 involves the exercise of liberty and by extension, privacy. In other words, everything done in the exercise of liberty requires privacy.

Justice Chandrachud interjected at this point by asking about the contradiction that arises when individuals place their information in the public while at the same time claiming privacy. Justice Nazeer also supplemented the question by asking about the boundaries of privacy – whether it translates to a right to be left alone. Mr. Subramanium responded by stating that protection of one’s personal space does not only mean protection of physical space. He explained that privacy has four aspects i.e. spatial, decisional, informational, and the right to develop one’s personality. In all these aspects, Mr. Subramanium said privacy is important. Justice Chandrachud then interjected again, asking if the state is under an obligation to legislate to protect privacy, seeing how Article 14 is a direct injunction against the state and Article 19 has a horizontal element, which Mr. Subramanium answered in the affirmative. He submitted that the combined reading of the SC’s decisions in Maneka Gandhi and Govind, along with Articles 14, 19 and 21, makes it clear that there exists a fundamental right to privacy, though the contours of this right will have to be dealt with separately. He concluded his arguments by reading out portions of relevant precedents from both India and the United States that support the existence of a fundamental right to privacy.

Senior Advocate Soli Sorabjee then argued briefly on behalf of the petitioners, reiterating that privacy is an inalienable right that inheres in the very personality of human beings. He also said that the absence of an express right to privacy from the Constitution does not mean that such a right does not exist. He pointed to how the courts have deduced the existence of a right to freedom of press from right to free speech guaranteed under Article 19(1)(a), and said that it is possible to deduce unenumerated rights from enumerated ones.

Mr. Shyam Divan commenced his arguments for the petitioners after Mr. Sorabjee. He pointed out that there has been an unbroken line of judgments in India since 1975 that have recognized the right to privacy under part III of the Constitution, and said that now is the time to affirm rather than regress the existence of that right which has been enjoyed by the Indians for four decades. He continued that right to privacy itself cannot be defined with any specificity and would develop on case by case basis, but it certainly included bodily integrity, personal autonomy, right to be left alone, informational self-determination, dignity, confidentiality, compelled speech, freedom of thought, among others.

In the context of Aadhaar and bodily integrity, Mr Divan said that a body belongs to a state in a totalitarian regime. If a person is compelled by State to give his biometrics for any purpose, it would be an invasion of his privacy and bodily integrity. Expanding upon informational self-determination, as an aspect of privacy, Divan argued, that a person must have control over how much information he wants to put out there. He should not be compelled to give the information, but should have the element of choice else it violates the right to privacy. Citing the nine-judge bench in I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), he said that the Constitution is a living document. He argued that privacy emanates from a conjoined reading of the golden triangle of Articles 14, 19 and 21. He further relied upon India’s international obligations to cover privacy as a right under part III.

Mr Divan then referred to several judgments that affirmed the right to privacy over time. He reiterated that the majority decision in Kharak Singh was overruled by Maneka Gandhi, as it was based on the doctrine propounded in A.K. Gopalan v. State of Madras (AIR 1957 SC 27), and the minority view was accepted as correct. He further stated that the judgment in M.P. Sharma was clearly distinguishable, referring to several other cases.

Taking his arguments further, he said that right to privacy is an internationally recognized human right and referred to international instruments including the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). He further made a mention of the report by special rapporteur appointed by United Nations Human Rights Council for privacy. Justice Chandrachud, making his observations on this aspect, said that as per the European Court of Human Rights, right to privacy is not necessarily co-extensive with right to data protection. He observed that data protection is a matter of statutory protection while privacy is a matter of constitutional protection. He further explained that not every aspect can be covered by privacy, with some falling under the ambit of data protection. Hence, privacy can not be regarded as an absolute right.

Mr Divan further argued that it was pertinent to recognize right to privacy under Part III of the Constitution so that the citizens have a remedy to approach the court in case of infringement. On being asked by the bench if he wanted to place right to privacy under Part III only for remedial purposes, Divan clarified that under Part III, degree of protection is much higher and thus, it casts a positive obligation on the State to ensure that the right is not violated. Concluding his arguments, Mr Divan stated that the mark of a civilization is how it treats personal privacy of individuals – if right to privacy is not recognized under Part III, then a large number of rights will be denuded of their vigor and essence.

Senior Counsel Arvind Datar began his submissions by placing two questions before the bench: first, what is the ratio decidendi of M.P. Sharma and Kharak Singh, and second, were they constitutionally correct? He asserted that the questions in M.P. Sharma and Kharak Singh were confined to self incrimination under Article 20(3) and freedom of movement under Article 19(1)(d), respectively. Both the judgments contained one stray comment on privacy, and the question of whether there is a fundamental right to privacy never came up for consideration. Mr. Datar read out passages from the M.P. Sharmajudgment and discussed the statements made on the Fourth and Fifth Amendments of the American Bill of Rights. Further, he gave the example of the American case Olmstead vs. United States that held that wiretapping was not a violation of the Fourth and Fifth Amendments, but was subsequently overruled by Katz vs. United States. The dissenting judgment of Justice Louis Brandeis in Olmstead vs. United States that mentioned “right to be let alone” was particularly important and gained significance with respect to the right to privacy. The landmark cases of Griswold vs. Connecticut and Roe vs. Wade were also mentioned by Mr. Datar in light of the reading of right to privacy in the Ninth and Fourteenth Amendment.

Further, Mr. Datar explained the judgment in Kharak Singh and how the majority opinion was to strike down Section 236 (b) of the UP Police Regulations that allowed “domiciliary visits” to the petitioner’s house. He emphasized that it is paradoxical that in the 21stcentury and in the largest democracy in the world, the right to life and personal liberty under Article 21 includes forty other rights but not the right to privacy. At this point, Justice Chandrachud interjected to point out that the cases of R. Rajagopal vs. State of Tamil Nadu (AIR 1995 SC 264) and Mr. X vs. Hospital Z (1998 Supp. (1) SCR 723) talked about privacy with respect to private entities, but fundamental rights are not applied horizontally. He also remarked that privacy can be deemed an amorphous concept under Article 21 without exhaustively defining its contours. Its boundaries have to be developed on a case to case basis. Justice Chandrachud also mentioned that every element of liberty does not include privacy. Liberty and privacy intersect but privacy is a smaller subset of liberty. CJI J. S Khehar concurred with Justice Chandrachud. Lastly, Justice Nariman put forth the question: if privacy is grounded in Articles 14, 19 and 21, what are the parameters of challenging the right? Mr. Gopal Subramanium answered saying it will be challenged with respect to the restrictions provided under each of these rights. Justice Nariman mentioned that the case of R.C Cooper held that Fundamental Rights are not watertight compartments and can overlap with each other, but it did not say anything with respect to challenging these rights. He later agreed that the challenge has to be looked at on a case to case basis.

The hearing will continue tomorrow.

All Posts | Aug 04,2017

[Press Release] High Court permits filing of Income Tax Returns without quoting Aadhaar

Kochi, 4th August 2017: Prasanth Sugathan, Legal Director at SFLC.in filed a Writ petition (W.P.(C) 26033/2017) before the Hon’ble High Court of Kerala , challenging the mandatory requirement as per Section 139AA of the amended Income Tax Act, 1961 to quote Aadhaar number or enrolment ID for filing Income tax returns.

The Hon’ble High Court has admitted the matter and passed an interim order, directing the concerned Income tax Officer to allow the petitioner to file IT Returns manually, without quoting Aadhaar number or Aadhaar enrollment ID.

Earlier this year, the Supreme Court heard the challenge of mandatory linking of Aadhaat to PAN in the cases of Binoy Viswam v. Union of India (W.P.(C) 247/2017), S.G. Vombatkere & Anr. v. Union of India (W.P.(C) 277/2017) and the two-judge bench held that the PAN cards of those people who are not Aadhaar card holders, and who do not comply with the provision of Section 139(2), cannot be “treated as invalid for the time being”.

Prasanth Sugathan submitted before the Hon’ble Court that the partial stay granted by the Hon’ble Supreme Court in the Binoy Viswam case would be futile, if assesses are forced to quote Aadhaar No. while filing the returns.

Mishi Choudhary, President, SFLC.in said that they have been continuously working to raise awareness about the mission creep that is happening with the Aadhaar scheme. The so-called voluntary scheme is being made mandatory for citizens to avail a host of services as well for performing obligations as a citizen.

The interim order can be read here:

About SFLC.in :
SFLC.IN is a donor supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. SFLC.IN promotes innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice and help policy makers make informed and just decisions with the use and adoption of technology.

For more information please contact:

Mishi Choudhary,
President and Founding Director, SFLC.in
+1 917 325 8594
mishi-at-softwarefreedom-dot-org

Prasanth Sugathan,
Legal Director, SFLC.in
+91 90135 85902 / +91 94472 91565
prasanth-at-sflc-dot-in

All Posts | Aug 01,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 5

A historic nine-judge Constitution Bench of the Supreme Court of India has been hearing arguments for and against the right to privacy in the matter of K.S Puttaswamy v. Union of India for four days. On the first two days of the hearing (July 19 and July 20), the petitioners presented their arguments in favour of a right to privacy in India. On the third day (July 25) Senior Advocate Kapil Sibal took a pro-privacy stance on behalf of the State Governments of Karnataka, West Bengal, Punjab and Puducherry. A brief submission was made by the Counsel for the State of Himachal Pradesh, while the Attorney General of India (K. K. Venugopal), on behalf of the Government of India initiated arguments against the right to privacy being a fundamental right. On day four (July 26), the Attorney General continued his arguments and Senior Advocate C.A. Sundaram began his submission for the State of Maharashtra.

Today, Senior Advocate C.A. Sundaram continued his submissions before the Court, followed by submissions from Additional Solicitor General Tushar Mehta on behalf of the State of Madhya Pradesh and Unique Identity Authority of India (UIDAI), and Senior Counsel Rakesh Dwivedi for the State of Gujarat.

Mr. Sundaram stated that the framers of our Constitution had expressly left out the right to privacy from the ambit of fundamental rights, and only the Parliament had the power to introduce it through a constitutional amendment, if they deem it necessary to have such a right. Privacy can only be protected by way of statutes and legislation, he said, and cannot be elevated to the level of fundamental right. Also, it was pointed out by him that privacy can be protected under other rights like right to property, freedom from intrusion, etc. J. Chandrachud disagreed with this interpretation, stating that many aspects of privacy are manifestations of liberty, and that Mr. Sundaram’s interpretation of the Constituent Assembly debates is narrow. He pointed out that the Constituent Assembly only discussed the aspects of secrecy of correspondence and privacy in one’s own home. They did not discuss the wider question of right to privacy.

Mr. Sundaram was of the view that data should be protected under Article 300A (right to property) of the Constitution. He mentioned that various aspects of privacy are already covered under Article 21, and there is no need to give it specific recognition. Mr. Sundaram gave the example of freedom of press not being a separate fundamental right, as it was already covered under freedom of expression. He maintained that the intention of the framers of the Constitution is satisfied by the existence of sufficient statutory protection of privacy. Further, he contended that people may choose subsidised food over protecting their private information, to which J. Chandrachud vehemently disagreed.

According to Senior Advocate C.A. Sundaram, personal liberty is different from civil liberty. He emphasized that personal liberty deals with only physical aspects of the person such as protecting their life and physical body, and does not include protection of mind. Other aspects, he argued, are covered under other fundamental rights. Justice Nariman asked Mr. Sunadaram about the judgement in the case of RC Cooper in which it was said that Fundamental Rights have to be read together, to which Mr. Sundaram replied that fundamental rights can stand alone and do not necessarily have to be read together. J. Nariman, shocked at this pre-1970s proposition, asked how such an argument could even be made today. He stated that even if we assume that privacy is not in our Constitution, it still has to be read in the fundamental rights because India is a signatory to the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). Mr. Sundaram disagreed, saying that in England, the House of Lords had repeatedly insisted that international conventions do not necessarily have to be read into domestic law. He accepted that with advancements in technology, intrusions into privacy may arise, but the solution for that is to devise suitable regulatory methods, instead of redefining Article 21.

Furthermore, Mr. Sundaram mentioned that the majority judgement in the case of Kharak Singh talked about three points: (1) pigeon hole theory; (2) privacy per se is not a fundamental right; and (3) ordered liberty is a part of personal liberty. He stated that theManeka Gandhi judgement overruled only the first aspect, while the other two aspects still stand. He reiterated that data protection can be traced to Article 300A and that it doesn’t fall under Part III of the Constitution. On being asked by J. Chelameswar about how data can come under the ambit of ‘property’, he said that if data is commercially valuable, it can be included under property by way of a wide interpretation of the term ‘property’.

Lastly, J. Chandrachud pointed out that Article 51, contained in the Directive Principles of State Policy, states that international conventions have to be respected. Mr. Sundaram argued that this has to be done statutorily; there is no need to include it in Part III of the Constitution. J. Nariman stated that the NALSA judgement specifically said that treaties have to be read into municipal law.

Next, Mr. Tushar Mehta began his submissions on behalf of State of Madhya Pradesh and UIDAI. He started his arguments by citing the case of Kharak Singh. He argued that privacy is vague and subjective and that something so ambiguous cannot be made a fundamental right. He contended that one person’s concept of privacy can be diametrically opposite someone else’s notion of privacy. Mr. Mehta accepted that privacy is a valuable right and therefore it has already been recognized by the Parliament through various statutes. He pointed out that the legislature, in its wisdom has enacted several subject specific legislations to protect various aspects of privacy.

J. Bobde opined that the problem arises when legislature denies protection of privacy. Mr. Mehta gave the example of Right to Information Act, 2000 and stated that even though transparency is essential, the legislature understands the importance of protecting privacy. Pointing out that the term “unwarranted” is vague in the RTI Act, J. Nariman asked how it can be challenged if there is no right to privacy? Mr. Mehta said that it can be protected as a common law right. At this point, J. Bobde interjected and said that state actions can only be challenged for infringement of fundamental rights, not a common law right. J. Nariman asked: “If dignity is violated, where will you ground it? It is not expressly stated as a right.” To this, Mr. Mehta cited a list of Indian statutes that protect individual privacy.

Further, on Aadhaar, J. Chandrachud asked what the remedy is for citizens if Aadhaar gets repealed. Mr. Mehta, in response, wanted to read out some provisions to show that the Aadhaar Act’s protection of privacy is exemplary. He also gave an example of the Information Technology Act, stating that it protects informational privacy. Mr. Mehta stated that various jurisdictions like New Zealand, Australia, Israel, Japan, Brazil, Saudi Arabia, China, etc. have individual statutory rights for protection of privacy. To this, J. Nariman quipped “It was shown to us that Pakistan has a fundamental right to privacy.” Making the point that our cultural ethos is different from other countries, Mr. Mehta mentioned that in America, the right to divulge the name of a rape victim is a fundamental right under freedom of speech and expression. On being asked by J. Bobde whether all of the countries mentioned by Mr. Mehta had fundamental rights under their Constitution, the latter replied that most of them do. He emphasized that it is up to the State to decide if it wants to guarantee constitutional or statutory right to privacy, but it has to be subject specific. J. Bobde also asked: “What are the factors that elevate a right to the level of fundamental right?” Mr. Mehta answered that the right has to come under the ambit of one of the stated fundamental rights. J. Nariman interjected at this point and highlighted that fundamental rights need to be interpreted according to changing needs of the time and that the Constitution cannot be interpreted literally. J. Chandrachud added by saying that privacy is at the heart of liberty in a modern state.

Further, Mr. Mehta quoted paragraphs from the judgments of Malone v. Metropolitan Police Commissioner and United States v. Graham. He gave the example of Electronic Communications Act in the United States that protects privacy of data, in support of his argument that privacy should be guaranteed nothing more than statutory protection. Further, it was contended that the even the apex court of Singapore and many other countries have not imposed the status of fundamental right on privacy. Mr. Mehta also revealed to the bench that the Government has constituted a committee headed by former Justice B.N Krishna to evolve principles related to data protection and the Ministry of Electronics and Information Technology is in the process of drafting a data protection bill. Mr. Mehta reiterated that vague concepts cannot be given the status of fundamental right and cited AK Roy v. Union of India and Shreya Singhal v. Union of India to support his viewpoint. He contended that there are dangers in expanding the scope of Part III of the Constitution, and public interest and good governance will be seriously harmed if privacy is made a fundamental right, without defining its boundaries. Mr. Mehta defended Aadhaar by stating that its repeal will cause irreparable damage. He also argued that the Supreme Court had endorsed biometric identification in the case of PUCL v. Union of India. Lastly, Mr. Mehta requested the court to not rely on American judgments while deciding the issue as the notion of privacy in America is different than what it is in India.

Counsel for Gujarat, Senior Advocate Rakesh Dwivedi began his arguments by submitting that every aspect of privacy has to be tested separately to decide if it can be elevated to the level of fundamental right. Mr. Dwivedi was of the view that life and personal liberty is enhanced when information is made public. The context is important when the question of breach of privacy arises, he stated. Justice Chandrachud pointed out that the right to privacy should be balanced with spread of knowledge and propagation of innovation. Further, Mr. Dwivedi mentioned that, even though privacy as a whole cannot be a fundamental right, but if the court thinks that certain aspects of it satisfies the reasonable expectations of society, then those aspects can be read into Article 21. At this point, Justice Chandrachud asked Mr. Mehta how much autonomy should an individual have or only the nature of privacy claim should be looked into. To this, Mr. Mehta replied saying that right to choice does not need the cloak of privacy. Decisional autonomy is already covered under Article 21 of the Constitution. Lastly, Justice Chandrachud and Justice Nariman discussed the right of limited use of data and emphasized that the usage of data should be limited to the purpose for which it is collected.

With this, arguments for the day concluded. The State will wrap up its arguments tomorrow, and the petitioners will wrap up theirs post lunch.

All Posts | Jul 27,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 4

Arguments before the nine-judge Constitution Bench of the Supreme Court on right to privacy (in the matter of K.S. Puttaswamy v. Union of India) ran into its fourth day today.

Attorney General Mr. K.K. Venugopal resumed arguments on behalf of the Centre, and began by contending that the M.P. Sharma and Kharak Singh judgments that refused to read privacy as a fundamental right are sound in law. After reading out excerpts from the majority opinion in these decisions, Mr. Venugopal reiterated the Centre’s stance that the Indian Constitution does not guarantee a fundamental right to privacy, even assuming privacy can be linked to the right to personal liberty guaranteed under Article 21. Informational privacy in particular, he said, is not a fundamental right and cited the US Supreme Court’s decision in NASA v. Nelson in support of his argument. Justice Nariman however pointed out that in NASA v. Nelson, the view that informational privacy is not a right was in fact a dissenting opinion by Justice Scalia, and that Justice Alito had assumed informational privacy to be a part of privacy, but distinguished its application when the State acts as an employer. Justice Chandrachud added that informational privacy has always been a part of the American jurisprudential due process guarantee. Mr. Venugopal read out a few more US decisions in support of his contention, and said that the US is jurisprudentially the most advanced country. Justice Chandrachud disagreed with this statement, and pointed out that when it comes to informational privacy, the US is actually far behind the European Union. Mr. Venugopal argued in response that the social and cultural landscapes of a country are important when speaking of the right to privacy, and said that there are a large number of American decisions that refused to consider decisions from the EU as it was felt that the socio-cultural landscapes of both regions were vastly different. He argued further that the American due process guarantee protects those rights that are rooted in national history and culture, and said that India should do the same. He then read out portions of the decision in US v. Miller, though Justice Nariman intervened once again to point out that this judgment was heavily criticized by Justice Lahoti in the Indian Supreme Court’s decision in District Collector v. Canara Bank.

Mr. Venugopal contended next that the makers of India’s Constitution had purposely omitted privacy from the ambit of fundamental rights, and reiterated that informational privacy, which is just one of the many facets of privacy, cannot be elevated to a fundamental right. Justice Chandrachud observed at this point that there needs to be a principle to determine the kinds of data/information that should be protected on grounds of privacy, to which Mr. Venugopal said that the determination should be made on the basis of the State’s interest in the data/information in question. Justice Chandrachud asked what kind of State interest Mr. Venugopal was referring to (compelling or legitimate), and Mr. Venugopal clarified that he meant legitimate State interest. Justice Chelameshwar expressed his disagreement to this view, but Mr. Venugopal persisted, pointing out as he did yesterday that many kinds of personal information are already requested by and provided to the State in connection to census surveys, passport, voter registration etc. Justice Nariman remarked that it becomes even more important to have a privacy legislation that protects the dissemination of such information as parting with the information is not voluntary. As Mr. Venugopal contended that no one had challenged the census or voter registration processes (unlike with Aadhaar), Justice Chelameshwar observed that the Census Act in fact imposes heavy penalties for disclosing census data, making it very difficult for private parties to acquire census data from the Government. Justice Bobde enquired if there is a similar provision under the Aadhaar Act, which Mr. Venugopal answered in the affirmative, citing Section 29 of the Aadhaar Act. After reading Section 29, Justice Chandrachud asked for an explanation as to why mobile numbers are not protected under the Act, and why medical history is not considered part of “demographic information”. The State may have a legitimate interest with respect to Aadhaar, said Justice Chandrachud, but there has to be a robust mechanism to ensure security of data collected. While he has no problem sharing his email ID or phone number with the State, he said he nevertheless has concerns about this information being shared with private parties who build their products and services using Aadhaar data. Additional Solicitor General Tushar Mehta intervened to submit that Section 29(2) of the Aadhaar Act read with the Aadhaar (Sharing of Information) Regulations lays down safeguards to oversee the sharing of Aadhaar data. Pointing out how the Aadhaar Act has a whole chapter on privacy interests, and how privacy also finds mention in the statement of objects and reasons, Justice Nariman asked why this should not be considered a legislative recognition of privacy. Mr. Venugopal opted to not answer the question, choosing instead to deal with it later on in his arguments. He nevertheless assured the Bench that the Aadhaar Act protects privacy and confidentiality of data, and argued that the very existence of a legislation protecting privacy implies that there is no fundamental right to privacy.

Mr. Venugopal then went on to speak in support of Aadhaar, citing US judgments that upheld the American social security number system. Noting how the list of information collected for social security numbers is comparable to information collected for Aadhaar, Mr. Venugopal also drew attention to the fact that social security numbers are necessary to procure a host of Government benefits and services, including death certificates. Reiterating yet again that the right to life of others overrides the individual’s right to privacy, he read out the majority opinions in Kharak Singh and M.P. Sharma and contended that none of the rights claimed by the petitioners can in fact be claimed as fundamental rights. He emphasized that both judgments were correctly decided, and concluded his arguments saying that elevating privacy to the level of a fundamental right while other facets of Article 21 like right to think and right to dissent remain non-fundamental rights would be contrary to the Constitution.

Senior Advocate Mr. C.A. Sundaram argued next for the State of Maharashtra. He started by outlining what he said is the sole question at hand i.e. whether the right to privacy is a fundamental right. If we are to read privacy as a fundamental right, he said it will be necessary to read all its manifestations similarly. However, Mr. Sundaram relied on Kharak Singh to argue that privacy per se cannot be a fundamental right, adding that facets of privacy can still be protected if they emanate from other established fundamental rights. He said privacy can never be defined unambiguously as everyone has a different conception of it. On being questioned by Justice Bode about the definition of “life” as it appears in Article 21, Mr. Sundaram said it is the ability to breathe and to have access to basic needs to exist. In other words, life is the antithesis of death. Justice Chandrachud vehemently objected to this definition, and Justice Nariman reminded Mr. Sundaram that the Supreme Court had interpreted the term “life” to mean more than mere animal existence. Chief Justice Khehar also weighed in, pointing out that terms like “dignity” and “liberty” are also undefined, though they are components of Article 21. Mr. Sundaram however persisted with his contention that privacy cannot be elevated to be a part of the right to liberty or any other fundamental right.

It was submitted by Mr. Sundaram that privacy is too ambiguous to be a fundamental right and that the makers of our Constitution had the specific intent to only have notions with exactitude as fundamental rights. Any state action should be tested against existing fundamental rights, he said, but new fundamental rights should not be claimed. Justice Nariman then asked if dignity is not a fundamental right, and Mr. Sundaram responded that it is a part of the right to life. However, dignity is a natural right, whereas privacy is a foreign concept. Justice Nariman said that reading dignity and liberty together may give you privacy, and Justice Bode supplemented this by saying privacy may be a pre-condition of dignity or liberty. Mr. Sundaram nevertheless persisted in his argument that this does not make privacy a fundamental right, and went on to quote Aristotle’s observation “one who doesn’t need society is a beast or a God”, pointing out that the right to be left alone is contrary to this. Stating that seclusion is the antithesis of society, Mr. Sundaram said there would be frivolous privacy claims if privacy were to be made a fundamental right. Privacy includes many expectations, he said, and these expectations must be tested on the basis of other fundamental rights. Contending that privacy and liberty are not interchangeable, he said that protection against unlawful intrusion does not mean there has to be a right to privacy. It was said that Kharak Singh was rightly decided in this regard, but wrongly interpreted by the petitioners. Justice Nariman however informed Mr. Sundaram that his interpretation of Kharak Singh was wrong, as the judgment wrongly treated movement and liberty separately. He said there is an internal contradiction in the majority judgment and that it effectively deals with privacy without saying so. Justice Nariman also said that a man defending his castle is defending his privacy, rather than his liberty as Mr. Sundaram put it. Justice Chandrachud clarified that “castle” here is a metaphor that alludes to the individual’s right to live in solitude.

Mr. Sundaram then argued that privacy must be a tangible right to be protected, which it is not. Justice Nariman disagreed with this view, saying Kharak Singh spoke of tangible infringements in context of Article 19(1)(d) but not Article 21. Mr. Sundaram contended that domiciliary visits were held unconstitutional in Kharak Singh because they related to tangibility of ordered liberty. Surveillance on the other hand was not struck down because it was an intangible infringement. He then reiterated that privacy is not a standalone right – it can be a common law right or a statutory right, but not a fundamental right. Justice Nariman once again posed a question on the inherent contradiction in Kharak Singh, but Mr. Sundaram was adamant that no such contradiction exists. Mr. Sundaram submitted further that Govind v. State of M.P. had not in fact found that there is a fundamental right to privacy, rather it read privacy into ordered liberty. Justice Nariman disagreed, pointing to two paragraphs in the judgment that talk explicitly about privacy as a fundamental right. Mr. Sundaram persisted with his argument that there was no real discussion in the judgment around privacy, and that all subsequent judgments on privacy went by a false assumption to the contrary. He said that this Bench has to decide the matter afresh, and cited a batch of American judgments including Whalen v. RoePaul v. Davis and the Nixon tapes case in support of his arguments.

Mr. Sundaram argued further that informational privacy can be protected by statutes and regulations even in the absence of a fundamental right. This Court will have to keep interpreting the evolving right to privacy if its contours are not defined, he said. Justice Chelameshwar pointed out that all fundamental rights can evolve, reminding Mr. Sundaram that freedom of press was not initially a part of freedom of speech and expression. Mr. Sundaram then traced the evolution of personal liberty from civil liberty, and said that the former is much narrower in scope. Justice Nariman agreed that personal liberty has a narrow scope, but observed that privacy relates specifically to personal liberty in any case. Mr. Sundaram then spoke about how the makers of our Constitution had omitted privacy despite being aware of the American First Amendment, at which point Justice Nariman reminded that even “due process” was considered for inclusion in the Constitution by its makers and later dropped, though due process was subsequently recognized by Maneka Gandhi v. Union of India. As Mr. Sundaram continued to argue that privacy and personal liberty are different from each other, Justice Chandrachud explained that the qualification of “liberty” in Article 21 by adding “personal” was done so as to avoid overlap with other freedoms such as those already provided for under Article 19. Another reason for this qualification was that in its absence, liberty might be read in an economic sense instead of a political or personal sense, as was done in the US and later corrected.

With this, arguments for the day drew to a close. The hearing will resume next on Tuesday, August 2.

All Posts | Jul 26,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 3

Today was the third day of arguments before a nine-judge Constitution Bench of the Supreme Court in the matter of Justice K.S. Puttaswamy and Ors. v. Union of India and Ors. [W.P.(C). No. 494/2012], regarding the existence of a fundamental right to privacy in India.

Mr. Kapil Sibal, appearing for the states of Karnataka, West Bengal, Punjab and Puducherry and taking a pro privacy stance, made a short submission before the State commenced its arguments. He began his submissions by stating that privacy cannot be an absolute right and that the court has to strike a balance. He emphasized that with the advancement of technology, its nature has become all pervasive and therefore the right to privacy should be enforceable against non state actors as well. Mr. Sibal quoted parts of the judgments of Riley v. California and US vs. Jones. Mr. Sibal was also of the view that the issue of right to privacy has to be considered afresh and not from the standpoint of Kharak Singh and M.P. Sharma. He further contended that the right to privacy is an inalienable natural right that is inherent in everyone, and can manifest under other rights like Article 19 of the Constitution. He gave the example of American, Australian and Canadian Constitutions that do not have an express right to privacy, but manifests itself under other rights. Mr. Sibal discussed various tests formulated by the Supreme Court of the United States, namely the “Katz test” and “Reasonable Expectation of Privacy test”. He also stated that there should be fetters on the discretional powers of the State, and right to privacy can only be breached if there is a legitimate public interest and the authority of law to do so. Lastly, he pointed out that India needs a robust data protection law, especially for protection of data from non state actors.

Counsel for the State of Himachal Pradesh also made a brief submission on how privacy is enshrined in Article 21 of the Constitution.

Attorney General of India, Mr. K.K Venugopal, appearing for the State began his submissions by placing two issues for the court’s consideration: whether the judgments in the cases of Kharak Singh and M.P Sharma hold true today, and whether right to privacy is a fundamental right.

Mr. Venugopal stated that the framers of the Constitution deliberately did not include right to privacy in Part III of the Constitution. He asserted that life and liberty are not absolute and that is the reason why death penalty is legal in India, which in turn means that deprivation of a right is inherent under Article 21. Mr. Venugopal further talked about derivative rights under Article 21 and stated that Right to Life and Personal Liberty are qualified rights and each an every aspect of these rights cannot be elevated to the level of a fundamental right. He further mentioned that each one of these aspects have to be scrutinized in the context of which it is claimed. Mr. Venugopal maintained that privacy is a specie of personal liberty and that privacy itself is not homogeneous and contains many sub species. It is not possible to elevate all these sub species to the level of fundamental right.

Mr. Venugopal’s second point of contention was that personal liberty has to be subordinated by right to life of others. He gave the example of Aadhaar and how it benefits millions of poor in India. To this, Justice Chandrachud said that right to privacy is not an elitist right. It is also for the common masses. He gave the example of women below poverty line suffering from cervical cancer due to multiple childbirths and early marriage. In such a situation, can the State implement a program of mass sterilization. J. Chandrachud pointed out that having the right to privacy becomes important in such a scenario. Mr. Venugopal stated that only some facets of privacy can qualify as fundamental right and not all. He asked the bench, “Right to privacy is a conglomerate of many rights. Will my Lordships evaluate each and every such right before deciding whether privacy is a fundamental right or not?”

Noting how it is unfair to say that Aadhaar will turn India into a totalitarian state, Mr. Venugopal pointed out that India’s census surveys collect considerably more information about residents than Aadhaar. Right to privacy, he said, has more credibility in developed countries that are socially, economically and politically developed, but not in a developing country like India. He reiterated his submission that privacy is not a homogeneous right, and that every aspect of privacy cannot be made a fundamental right.

Justice Bobde reminded Mr. Venugopal that the Bench will only discuss whether privacy is a fundamental right, without going into the various aspects of this right. CJI Khehar concurred with Justice Bobde, and added that questions beyond privacy’s status as a fundamental right will be taken up by other small Benches in time. He also observed that the fact that right to privacy is not absolute does not necessarily mean it cannot be a fundamental right, since other fundamental rights like freedom of movement are also non-absolute.

Justice Nariman then asked Mr. Venugopal how he would substantiate his contention that there are some sub-species of privacy that constitute fundamental rights, if privacy overall is not elevated to a fundamental right. He also outlined two domains of mental activity around which privacy rights exist, namely dissemination of information and the individual’s private choices, and asked Mr. Venugopal to explain how either of these do not fall under Article 21 in his view. Mr. Venugopal said in response that he is merely objecting to the petitioners’ contention that privacy is a homogeneous right, and that the various sub-species of privacy must be tested individually to determine if they qualify as fundamental rights. Noting that privacy is a sociological rather than a legal construct, he reiterated his contention that privacy is a derivative right that is secured by protecting more cognizable rights.

Justice Chandrachud observed at this point that there may be certain aspects of one’s personal life that do not invoke the right to privacy. For instance, while it may be acceptable to ask a woman about her marital status or about the number of children she has, it is certainly not acceptable to ask her about the number of abortions she has had, as this would be considered violative of her privacy. Illustrating further, Justice Chandrachud pointed to a Maharashtrian law that prohibits the third child of a family from contesting elections. In this case, he said a candidate would be required to disclose if he is a third child, and whether he was born out of his parents’ first marriage or otherwise. Justice Chandrachud cited the disclosure of transgender status as yet another example of information disclosure that is not considered a violation of privacy.

Adding to Justice Chandrachud’s observations, Mr. Venugopal questioned the unwillingness to disclose for Aadhaar the same information that is disclosed for election or census survey purposes. He then read out portions of the Representation of People’s Act that mandate public disclosure of information, and also read out judgments that upheld various facets of this mandate. Justice Chelameshwar said elections are not the right example as information disclosure in this case is about balancing constitutional interests.

Mr. Venugopal submitted further that even if the court upholds a right to privacy, it is not an absolute right, but one that would be outweighed by overwhelming public interest among other things. He said he firmly believes that it is difficult to uphold right to privacy in a developing country as there are far graver issues to tackle first, and mentioned human trafficking and starvation as examples. The State, he said, has a legitimate interest to introduce programs like Aadhaar and MGNREGA that seek to help people realize their rights to food, health, employment etc., and once again pointed to the World Bank report that appreciated Aadhaar. Justice Chandrachud said at this point that the existence of a legitimate state interest to introduce Aadhaar does not foreclose the possibility of there being a right to privacy, and pointed to the forced sterilizations of 1975 as one of the worst evils that India has seen.

Mr. Venugopal then contested that while there may be a fundamental right to privacy, it is a qualified right that has many sub-species, all of which will not fall under Article 21. He also contented that something as amorphous as a general right to privacy should not be considered a fundamental right, and requested that the Bench allow him to argue before a smaller Bench that there is no claim of fundamental right involved in the present petition. The Bench reminded Mr. Venugopal that he had earlier insisted on bringing the matter from a five-judge to a nine-judge Bench, as a result of which the present Bench was constituted. Additional Solicitor General Tushar Mehta appearing for UIDAI briefly interjected at this point that he would argue privacy to be an enforceable right, though not a fundamental right. The Bench said will decide on the existence of a fundamental right to privacy in a very detailed judgment for the conceptual clarity of the nation.

This concluded arguments for the day. The hearing will resume tomorrow and the State will continue its submissions.

All Posts | Jul 20,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 2

Today, a nine-judge Constitution Bench of the Supreme Court continued hearing arguments on the existence of a fundamental right to privacy, in connection with the matter of Justice K.S. Puttaswamy and Ors. v. Union of India and Ors. [W.P.(C). No. 494/2012] that challenged various aspects of the Aadhaar scheme.

Senior Advocate Arvind Datar resumed arguments on behalf of the petitioners, and started by recapitulating his arguments from yesterday. Stating that privacy is implicit in Articles 14, 19 and 21 of the Constitution, he contended that the SC’s decisions in M.P. Sharma v. Satish Chandra(AIR 1954 SC 300) and Kharak Singh v. State of U.P.(AIR 1963 SC 1295)did not deal with privacy beyond making a few stray comments on the subject, while on the other hand, there have been over 35 decisions that have reaffirmed the right to privacy. M.P. Sharma and Kharak Singh therefore deserve to be overruled, said Mr. Datar.

Justice Kaul asked Mr. Datar at this point whether there is a right to privacy that applies against private entities. Quoting Lawrence Tribe, Mr. Datar explained that there are three kinds of privacy: physical, informational, and decisional. If the privacy of an individual is violated by a non-state actor, the individual would be entitled to punitive and/or injunctive remedies. Justice Chandrachud then observed that if the fundamental right to privacy is horizontally applied, the state would be obliged to make a regulatory framework to protect privacy. Mr. Datar responded by pointing out that horizontal rights can be regulated by the state depending on the extent to which they infringe public interest. He also relied on the SC decision in R. Rajagopal v. State of T.N. (AIR 1995 SC 264) as an example of a case where a mix of both vertical and horizontal application of fundamental rights was involved. With this Mr. Datar concluded his arguments.

Senior Advocate Anand Grover argued next for the petitioners. He started with the contention that the Constitution is a living document and hence,needs to evolve over time. Noting how the present Bench only needs to overrule one part of M.P. Sharmaand howManeka Gandhi v. Union of India had already overruled Kharak Singh, Mr. Grover pointed out that privacy as a Common Law right is not actionable in India as we follow English Common Law, however, it is actionable under United States Common Law. He mentioned that under international law, remedy against violation of privacy lies against State and not private parties. He further submitted that under international law, it is an accepted position that all human rights are interconnected. The inter-linkage of fundamental rights was also recognized in I.R. Coelho v. State of T.N. (AIR 2007 SC 861). It was also recognized in I.R. Coelho as well as M. Nagaraj v. Union of India (AIR 2007 SC 71) that fundamental rights must be given expansive interpretation so that they evolve with changing conditions.Govind v. State of M.P. (AIR 1975 SC 1378) had additionally held that fundamental rights should not be fossilized.

Mr. Grover then spoke about how the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) cast obligation on the State to respect and protect right to privacy. He, thus, stated that even if there is no right to privacy in the Constitution, the State is supposed to go by the Common Law principle, thereby being obligated to enact legislative measures. After reading out other international covenants ratified by India, where right to privacy has been recognized, he submitted that the Protection of Human Rights Act, 1993 incorporates international human rights law into Indian law. Mr. Grover pointed to the multiple reports published by United Nations Special Rapporteurs to demonstrate that there is a detailed international framework protecting privacy rights, and cited the four-factor proportionality standard found in international human rights law. He then relied on the SC’s decision in Visakha v. State of Rajasthan (AIR 1997 SC 3011) for the proposition that in the absence of domestic law, international law can be applied. The same case also held that international human rights standards can be read into fundamental rights provisions, as did Bachan Singh v. State of Punjab (AIR 1980 SC 898) and Francis Caralie Mullin v. Union Territory of Delhi (AIR 1981 SC 746).Reiterating that human dignity is the essence of Article 21, Mr. Grover read out portions from the SC’s decision in National Legal Services Authority v. Union of India [(2014) 5 SCC 438] in support of reading Article 17 of the ICCPR on right to privacy into the Indian Constitution. Justice Nariman observed that this is an important argument as it can prove that the M.P. Sharma judgment in 1954 was incorrect.

Justice Chandrachud observed at this point that a Government that collects vast amounts of data of its citizens may use artificial intelligence to analyze metadata and determine who is predisposed towards committing crimes. Such a case will constitute violation of privacy. However, the same Government can use that metadata to further socio-economic interests of the people by way of welfare schemes. This case will not result in violation of privacy. Thus, the question is of legitimate and illegitimate use of data and therein lies the distinction. CJI Khehar added that the question of infringement of privacy arises when an individual is compelled to furnish such information which infringes his dignity. He noted that privacy flows from dignity, which in turn flows from liberty, though he also said that liberty in the Preamble is not as wide as Mr. Grover had suggested it to be. Mr. Grover then submitted that dignity is the underlying value, and that privacy is necessary to protect dignity. While all dignity claims may not be related to privacy, all privacy claims arise out of dignity, he stated. Concluding his arguments, he said that it is not possible to lay down a specific formula with respect to privacy – rather, it has to be decided on a case to case basis.

Senior Advocate Mr. Sajan Poovayya argued next for the petitioners, and focused his arguments on the current state of digital privacy and security. He asserted that with the society moving towards digitalization, it is important to protect our digital spaces. He mentioned how Kharak Singh and M.P. Sharma discussed physical surveillance, but in today’s day and time, surveillance is conducted digitally. Mr. Poovayya highlighted that India is ahead of United States in terms of mobile and broadband penetration, and given the amount of data that is being put online by us, the issue of enacting a data protection or privacy legislation would have undoubtedly arisen in some case, if not in the case of Aadhaar. He cited the case of Katz vs United States, wherein the court had extended Fourth Amendment protection to all aspects where an individual has a “reasonable expectation of privacy.” Further, Justice Sotomayor’s opinion that questioned the constitutionality of warrantless short-term GPS surveillance, in the case of United States vs. Jones was also cited.

Mr. Poovayya pointed out that the state would have dealt with data collected by it very differently if privacy was recognized as a fundamental right earlier. He made special mention of the Aadhaar project, and said its large scale collection of biometrics may never have happened, had there been an overarching right to privacy at the time of its conceptualization. He also highlighted that in a digital society, collection and analysis of data occurs everyday, but the data should be processed only to the extent of consent granted for the same. At this point, Justice Chandrachud asked: “How is surrendering data to private parties different from surrendering data to the state? What is the theoretical basis for that? Is it just Constitutional value or something beyond that?” Mr. Poovayya answered by saying that in case of surrender of data to the state, the state has to assure that the data will not be used for any other purpose other than that for which it was given. Also, the time period for which the data is retained is crucial. Further, he stated that the theory that individuals who have voluntarily given away their data have no right to privacy has to be reconsidered.

Mr. Poovayya asserted that in this age, everyone has a digital identity, besides having a physical identity, and the state is obligated to protect our digital identity as much as it is obligated to protect our person. Also, he read out the part in the Kharak Singh judgment that discussed psychological restraint. He said that the fact that the state can monitor individuals’ data will have a psychological restraint on them, resulting in chilling effect. Mr. Poovayya quoted parts of the right to privacy article written by Warren and Brandeis in 1890 that envisioned future invasive technologies and mentioned the importance of a right to be left alone. He emphasized the need for a fundamental right to privacy and gave the example of the Post Office Act of 1898 that prescribed strict procedures for letters to be opened only by intended recipients, thus affirming that right to privacy was inherent even during the colonial era. Further, he also mentioned Section 8(1)(j) of the Right to Information Act, 2005 that says that “there shall be no obligation to give any citizen any information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

He wrapped up his arguments by stating that a fundamental right to privacy is the need of the hour and its contours should be decided on a case to case basis.

Senior Advocate Ms. Meenakshi Arora commenced her submissions next by stating that the issue before the Bench is whether the statements with respect to privacy in Kharak Singh and M.P. Sharma are correct expressions of the Constitution. She further pointed out that the majority judgment in Kharak Singh had relied on Wolf vs. Colorado to strike down Section 236(b) of the U.P. Police Regulations, and remarked that privacy against arbitrary intrusion is as important in India as it is in the US, in stark contrast to the Bench’s subsequent refusal to recognize the right to privacy. The majority judgment also mentioned the word “dignity.” Ms. Arora further stated that the right to privacy can also be drawn from Articles 17, 24 and 25 of the Constitution. She evaluated the evolution of the right to privacy by citing various English judgments, and the Indian case of District Collector vs. Canara Bank (AIR 2005 SC 186) was also mentioned as an important case in this regard. She concluded her submissions by saying that history has taught us that without a fundamental right to privacy, the consequences will be unimaginable.

With this, the petitioners have completed their arguments in the matter. The respondents i.e. the state will start their arguments on Tuesday, July 25.