By Shivangi Nadkarni & Anand Krishnan, Arrka Consulting

 

1.Background

In India, there has really been no clarity on whether Privacy is a fundamental right or not. With personal data in the hands of the government/ private entities becoming a critical aspect for individuals – especially with various diktats around Aadhaar – this question needed to be settled once and for all. An unprecedented 9-Judge bench was constituted by the Hon’ble Supreme Court of India to decide on this matter. The proceedings of the court took place over the last three weeks and the final judgement is expected before the end of August, 2017.

This note gives an overview of the background, the proceedings at the court, and the implications of privacy being a fundamental right or not.

 

 2.What led to the Supreme Court Proceedings?

Petitions in the Supreme Court:

With the increasing ‘compulsion’ around the usage of Aadhaar for various activities, the debate around privacy escalated in the recent past. Even before the Aadhaar Act[i] was passed in march 2016, there were several petitions[ii] in the Supreme Court challenging it. After the passing of the Act and its associated rules (passed in Sept 2016), fresh petitions[iii] were filed.

The Government’s Stance:

While arguing on behalf of the government, the Attorney General, Mukul Rohtagi, submitted that in view of prior judgements[iv] of the Supreme Court, the legal position regarding the existence of the fundamental right to privacy is doubtful. This was in August 2015.

What the Supreme Court did:

A 3-Judge bench of the Supreme court, at that time, passed an order that a special bench of ‘appropriate strength’ be constituted by the Chief Justice of India to scrutinize the earlier judgements and to decide once and for all on this matter.

Consequently, a 5-Judge bench[v] was set up on 18th July 2017. This bench decided the very same day that a 9-Judge bench needs to be constituted to determine whether the right to privacy is a fundamental right under the Constitution of India. Rest of the issues associated with the Aadhaar scheme would be decided by the smaller 5-Judge bench at a later stage.

The very next day, on 19th July 2017, a 9-Judge Constitutional Bench[vi] began hearing petitioners arguments to determine whether right to privacy is a fundamental right under the Constitution of India.

 

3.Significance of the Size of a Bench

Why a 9-Judge bench?

Since the case involves an interpretation of the Constitution of India, i.e. whether the right to privacy is a fundamental right or not, the bench had to consist of at least 5 Judges[vii]. The Supreme Court, in practice, holds the decision of a larger bench to have an overriding effect on the decision of a smaller bench. Since the earlier two judgements in existence on the right to privacy were decided by a 6-Judge bench [Kharak Singh v. State of Uttar Pradesh (1964) SCR (1) 332)] and an 8-Judge bench [M P Sharma & Others vs Satish Chandra, District Magistrate, Delhi & Others], a constitutional bench of 9-Judges was required to be established to make this decision an authority on the existence of the right to privacy under the constitution.

Why is a 9-Judge bench of such critical significance in the history of independent India?

Most matters before the Hon’ble Supreme Court are heard by a division bench consisting of 2-3 Judges. For example, the critical Ayodhya Judgement was delivered by a 3-Judge bench. Setting up of a 9- Judge constitutional bench is, therefore, a very rare occurrence.

 

4.What is the Implication of Privacy being a Fundamental Right or Not?

Part III of the Constitution of India lists the fundamental rights of citizens and residents. According to Article 13(2) the state ‘shall not make any law which takes away or abridges the rights conferred by this Part’.

In simplistic terms, this means that if Privacy is declared to be a fundamental right, then no government can pass any law that compromises that right in any way.

What if it is not a fundamental right? Does that mean ‘all is lost’?

Well.. not necessarily.

One can reasonably hope and anticipate that, given the current reality of personal data, surveillance, etc, the government(s) of the day would pass suitable laws to protect the privacy of its citizens and residents. The present government has taken some steps forward in this regard. However, the government(s) – current and in future – can pass a law at any point in time that subverts certain aspects of privacy (which, of course, can be challenged in the court – but that is a different trajectory altogether).

Incidentally, many rights that we take ‘for granted’ – like the right to vote – are NOT fundamental rights.

Why is this decision about Privacy a complex one?

The Hon’ble Supreme Court has the task of not only determining whether the Right to Privacy is a fundamental right or not but also to determine the contours of the Right to Privacy if its existence as a fundamental right is established. A narrow scope of application of the right may negate the very purpose of the right. It may allow the opportunity to deal with the privacy challenges of today but fail to safeguard against inevitable challenges that come hand in hand with rapid technological advancements.

 Would India be unique if this were to happen?

No.

For eg., in the United States, Privacy is not an explicitly-mentioned fundamental right.

On the other hand, in Europe, Privacy IS a fundamental right. Same goes for countries like China, Brazil, Bhutan and even Pakistan.

 

5.What were the Key Arguments presented to the Supreme Court?

Given how critical this matter is, some of the finest legal luminaries of India were involved from both sides of the table. Irrespective of what the final judgement is, it was a sheer pleasure to listen to the arguments and submissions made by these top lawyers. We present below excerpts from the submissions made:

By the Advocates for the Petitioners:

a) Gopal Subramaniam

  • Privacy is embedded in all aspects of life and liberty
  • Life and liberty are not conferred by the Constitution; they are pre-existing natural rights and Constitution merely recognises them. Dignity, Liberty and consequentially privacy are not accompanying rights but is the essence of right to life. It is the heart and soul of the Constitution.
  • Can liberty be exercised without privacy? No. Privacy is not a sub-set of liberty. It is THE LIBERTY.
  • Preamble of Constitution uses two expressions – liberty and dignity. Liberty is analogous to American jurisprudence while Dignity is analogous to continental jurisprudence. Privacy is embedded in both liberty and dignity.
  • Constitution places citizens as paramount with the State being the product of the Constitution.

b) Soli Sorabjee

  • That right to privacy is not mentioned anywhere in Constitution does not mean that it does not exist. It can be deduced from other fundamental rights.
  • Freedom of press is not expressly provided in the Constitution. But it is deduced from Article 19(1)(a).
  • Argument that it does not exist is fallacious especially after the judgments in RC Cooperand other cases.

c) Shyam Divan

  • Since 1975, Right to Privacy has been affirmed by this Court. It is now an opportunity to consolidate the same and not regress.
  • Argument that my body belongs to the State is symbolic of totalitarian regime.
  • Kharak Singhhas been expressly overruled by Maneka Gandhi[viii].
  • If there is no Right to Privacy, a large number of Fundamental Rights may be denuded.

d) Arvind Datar

  • In both MP Sharmaand Kharak Singh, the issue of whether privacy is envisaged in Part III or not was not in question. The rational for decision in both MP Sharma and Kharak Singh is not whether Right to Privacy is a Fundamental Right or not.
  • They (Central government) are taking one line from MP Sharma and one line from Kharak Singh and arguing that there is no Right to Privacy and that is the law of the land.
  • In 2017, for a democratic country like India to say that fundamental rights include a plethora of rights but not Right to Privacy would be paradoxical.
  • We cannot say that we have Right to Life and Personal liberty but that right does not include Right to Privacy.
  • The parameters on which Right to Privacy should be tested will depend on the law under challenge. Today, it is definitely a part of Articles 14, 19 and 21. Tomorrow it could be a facet of more Part III rights.

 

By the Advocates for the government[ix]:

a) Kapil Sibal

  • Technology allows State to be all pervasive and invasive. It has the capacity to empower and dis-empower.Today, there is no need to enter someone’s house to know what is going on inside the house. It can be ascertained sitting miles away.
  • MP Sharmaand Kharak Singh cannot be used to determine contours of privacy today due to big changes in technology and circumstances.
  • In this era of technology, Right to Privacy cannot be absolute. The Court has to strike a balance and there should be a method to protect communication between State and individuals and non-state parties and individuals.
  • Privacy relates to one’s physical being, thoughts and inter-personal relationships.
  • When state accesses data, it should be sanctioned by law and it should be for a legitimate aim.
  • There has to be a data protection law in this country.
  • Privacy also has another dimension – privacy of data of the state. So if a non-state actor accesses such data, he should be prosecuted.

 b) KK Venugopal

  • There is no fundamental Right to Privacy. Even assuming privacy can be raised to the status of liberty, it is multi-faceted and every facet will not be eligible to claim the status of fundamental right.
  • India had declined to introduce privacy as fundamental right as is evident from the Constituent Assembly[x] But now Your Lordships are being asked to hold privacy as fundamental right, which should be rejected.
  • Each aspect of privacy should be examined individually.
  • If there is an overwhelming State interest involved, then as far as informational privacy is concerned, there will be a blanket right on the State to collect data.
  • The fact that Aadhaar Act recognises privacy is a recognition that there is no fundamental right to privacy. That is why a law has been enacted.Right to Privacy was consciously considered and jettisoned [by Constituent Assembly]. Hence, it should not be read back.

c) Aryaman Sundaram

  • The basic question is whether privacy is a fundamental right. This will necessarily mean we will have to read in all aspects of privacy. Hence, submission by the petitioner that certain facets of privacy is fundamental right while others may not be, would mean that the genus of privacy cannot be conferred the status of fundamental right.
  • Before we confer something status as fundamental right, we need to know what exactly the right is. Privacy is just a concept.
  • Concept of privacy is all encompassing. To have it as a fundamental right would amount to injecting an expression with ambiguity and vagueness into the Constitution, something which was expressly rejected by Constituent Assembly.
  • Expressions like freedom of speech, movement etc are concepts which have an exactitude. However, privacy is a word without exactitude. It is an incomplete expression.
  • Kharak Singh has been correctly decided and wrongly interpretedGovind v. State of Madhya Pradesh did not lay down Right to Privacy as a fundamental right.
  • Purpose of Article 21 is protection of body; Protection of mind is found in Freedom of Conscience (Article 25).

d) Additional Solicitor General Tushar Mehta

  • 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

 e) 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 someone 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.
  • 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.
  • We must make use of technology to the maximum.

f) Gopal Sankaranarayanan

  • 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.
  • Consequences of elevating all aspects of privacy as Fundamental Rights will be problematic. 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. Maybe it is possible, that derivative rights of Privacy can be waived.
  • 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.

g) Argya Sengupta

  • The 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.

 

6) When is the final judgement expected?

The final judgement in the matter is expected to come out sometime at the end of this month (Aug 2017).

 

Shivangi Nadkarni (@shivanginadkarn) is Co-Founder & CEO and Anand Krishnan (@krishnan92anand) is Associate Consultant at Arrka Consulting.

 

Do write in to privacy@arrka.com for your comments & feedback. And if you want to subscribe to our blog posts.

 

References:

 –Mittal, P. (2017). Is privacy a fundamental right? http://www.livemint.com/.Available at: http://www.livemint.com/Politics/IbjNOSrR0T7iHj8cvjeXYO/SC-sets-up-9judge-Constitution-Bench-to-decide-on-right-to.html

-Krishnan, M. (2017). #RightToPrivacy: Supreme Court reserves judgment. Bar & Bench. Available at: https://barandbench.com/right-to-privacy-supreme-court-reserves-judgment/

-Krishnan, M. (2017). Right to Privacy: AG KK Venugopal, Aryama Sundaram make submissions on Day 4. Bar & Bench. Available at: https://barandbench.com/right-to-privacy-venugopal-sundaram-day-4/

-Krishnan, M. (2017). Right to Privacy: Datar, Grover, Poovayya, Meenakshi Arora argue on Day 2. Bar & Bench. Available at: https://barandbench.com/right-privacy-datar-grover-poovayya-argue-day-2/

-9-judge bench Right to Privacy hearing concludes; Judgment reserved. (2017). SCC Blog. Available at: http://blog.scconline.com/post/2017/07/19/right-to-privacy-issue-all-that-happened-on-day-1-of-the-hearing/

Footnotes:

[i] Formal Name of the Act is Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016

[ii] Tagged together under the case of K.S. Puttaswamy & Others (Ors). v. Union of India & Ors.

[iii] S.G. Vombatkere and Anr. v. Union of India & Ors.

[iv] M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively)

[v] Consisting of Chief Justice of India J.S. Khehar, Justice Chelameswar, Justice S.A. Bobde, Justice Chandrachud and Justice Abdul Nazeer

[vi] Consisting of CJI Khehar, Justice J. Chelamsewar, Justice S.A. Bobde, Justice R.K. Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice DY Chandrachud, Justice Sanjay Kishan Kaul and Justice S. Abdul Nazeer

[vii] As per Article 145(3), Constitution of India.

[viii] Maneka Gandhi vs. Union of India, 1978 AIR 597, 1978 SCR (2) 621, The court held that the right to travel and go outside the country is included in the right to personal liberty guaranteed under Article 21. Section 10(3) (c) of the Passport Act is not violative of Article 21 as it is implied in the provision that the principles of natural justice would be applicable in the exercise of the power of impounding a passport.

[ix] Kapil Sibal, appearing for the States of Karnataka, Punjab, West Bengal, Himachal Pradesh and Puducherry; Arghya Sengupta, appearing for the state of Haryana and TRAI; Gopal Sankaranarayanan appearing for the Centre for Civil Society; Attorney General KK Venugopal, appearing for the Union of India; Aryaman Sundaram, appearing for the State of Maharashtra; Rakesh Dwivedi, appearing for the State of Gujarat; Additional Solicitor General Tushar Mehta appearing for UIDAI.

[x] The Constituent Assembly, consisting of indirectly elected representatives, was established to draft a constitution for India (including the now-separate countries of Pakistan and Bangladesh)