Right to privacy: India
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Invoking an individual’s right to privacy and the right to be forgotten, the Madras HC has observed that a person’s name should be redacted from judgments if s/he is acquitted in a criminal case as a Google search can make or mar a person’s character, reports K Kaushik. The court was hearing the plea of a man who was convicted of rape and cheating, but subsequently acquitted of all charges. | Invoking an individual’s right to privacy and the right to be forgotten, the Madras HC has observed that a person’s name should be redacted from judgments if s/he is acquitted in a criminal case as a Google search can make or mar a person’s character, reports K Kaushik. The court was hearing the plea of a man who was convicted of rape and cheating, but subsequently acquitted of all charges. | ||
| − | [[Category:India|P RIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIA | + | ==HC: Criminal justice system not at level where accused’s name can be redacted== |
| + | [https://epaper.timesgroup.com/Olive/ODN/TimesOfIndia/shared/ShowArticle.aspx?doc=TOIDEL/2021/08/04&entity=Ar01904&sk=25E0C715&mode=text K Kaushik, August 4, 2021: ''The Times of India''] | ||
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| + | '' Redact= censor or obscure (part of a text) for legal or security purposes '' | ||
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| + | Dismissing a plea moved by a man seeking to redact his name from a judgment of the Madras high court that acquitted him in a criminal case, the HC observed that “this court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations”. | ||
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| + | “This court must take judicial notice of the fact that the criminal justice system that is prevalent in this country is far from satisfactory. In various cases involving heinous crimes, this court helplessly passes orders and judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system,” observed Justice N Anand Venkatesh. | ||
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| + | The judge observed that though this court came to a prima facie conclusion that an accused person is entitled to have his name redacted from the judgments or orders and more particularly the ones that are available in the public domain and which are accessible through search engines. However, on a deeper review of the issue, this court has taken cognisance of the fact that the same is not as simple and straight as it sounded. This court felt that there may be ramifications if such a generalised order is passed and directions are issued. | ||
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| + | The judge observed that during the course of deliberation, the attention of the court was drawn to various foreign judgments and also the relevant regulations and enactments of those countries which specifically provides for expunction, expungement, redaction or destruction of criminal records. | ||
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| + | “No such rule or regulation exists in India for the present. In the absence of any statutory backing, this court cannot undertake the exercise of issuing directions when no judicially manageable standards exist in the first place. There must be a proper policy formulated in this regard by means of specific rules. In other words, some basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion,” observed the judge. | ||
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| + | The judge observed that it will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. “If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system,” observed the judge. | ||
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| + | [[Category:India|P RIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIA | ||
RIGHT TO PRIVACY: INDIA]] | RIGHT TO PRIVACY: INDIA]] | ||
| − | [[Category:Law,Constitution,Judiciary|P RIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIA | + | [[Category:Law,Constitution,Judiciary|P RIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIARIGHT TO PRIVACY: INDIA |
RIGHT TO PRIVACY: INDIA]] | RIGHT TO PRIVACY: INDIA]] | ||
Revision as of 19:51, 10 August 2021
This is a collection of articles archived for the excellence of their content. |
The legal position
See graphic, ' The court cases that led to the SC taking up the issue of the right to privacy'
Not every aspect of privacy is fundamental right: SC
From The Times of India, August 25, 2017
See graphic, 'Seven cases in the Supreme Court that upheld the right to privacy'
Chief Justice Khehar sums up Centre’s arguments as also saying that not every aspect of privacy is a fundamental right and it “depends on a case-by-case basis.”
The Centre told the Supreme Court that privacy was indeed a fundamental right, but a “wholly qualified” one.
This led a nine-judge Constitution Bench headed by Chief Justice of India J.S. Khehar on Wednesday to sum up Attorney General K.K. Venugopal’s submission thus: “You are saying that right to privacy is a fundamental right. But not every aspect of it [privacy] is a fundamental right. It depends on a case-to-case basis.”
Mr. Venugopal agreed to the court’s interpretation of the government stand on privacy.
Earlier the court kept prodding Mr. Venugopal to make the government’s position clear. At one point, Chief Justice Khehar even said that the reference to the nine-judge Bench could be closed if the Centre agreed that privacy was a fundamental freedom.
“Petitioners had argued that there is a fundamental right to privacy. You [Centre] had stalled them by saying that privacy is not a fundamental right. You quoted our eight and six judges’ Benches’ judgments to claim privacy is not a fundamental right. So, the five-judge Bench hearing the Aadhaar petitions referred the question ‘whether privacy is a fundamental right or not’ to us. Now if you are saying that privacy is a fundamental right, shall we close this reference right now itself?” Chief Justice Khehar asked Mr. Venugopal.
The Attorney General explained to the Bench that the government did not consider privacy to be a single, homogenous right but rather a “sub-species of the fundamental right to personal liberty and consists of diverse aspects. Not every aspect of privacy is a fundamental right.” Some aspects of privacy were expressly defined in the Constitution, while some were not.
Mr. Venugopal said there was a “fundamental right to privacy. But this right is a wholly qualified right.”
He submitted that citizens could not agitate against Aadhaar, saying it was a violation of their right to privacy. And as far as Aadhaar was concerned, privacy was not a fundamental and absolute right. The state could subject privacy to reasonable restrictions in order to preserve the right to life of the masses. He said an elite few could not claim that their bodily integrity would be violated by a scheme which served to bring home basic human rights and social justice to millions of poor households across the country.
At this, Justice Rohinton Fali Nariman retorted: “But Mr. Venugopal, don’t forget the little man’s right to privacy, everything about right to privacy is not connected to the Aadhaar issue.”
To this, Mr. Venugopal argued that privacy was submissive to the fundamental right to life under Article 21. Aadhaar was a measure by the state to ensure the teeming millions of poor in the country were not reduced to lead an “animal existence.”
“Petitioners have divided privacy into the realms of the body and mind. They say the three aspects of privacy include bodily integrity, dissemination of personal information and the right to make own choices. Tell us which among these aspects do not fit the Bill under Article 21 [right to life],” Justice Nariman asked.
"You are wrong to say that privacy is an elitist construct. Privacy also affects the masses. For example, there is an increase in instances of cervical cancer among women in impoverished families. Right to privacy of these women will be the only right standing in the way of State subjecting them to a ‘health trial’ or, say, compulsory sterilisation," Justice D.Y. Chandrachud pitched in.
As an aside, Justice Chandrachud suggested a middle way in the Aadhaar conundrum, saying personal data could be handed over to the state, provided it collected the personal information under a statutory law; had facilities to keep them secure; and used the data only for a legitimate purpose.
But Chief Justice Khehar intervened, saying “we [the nine judges] are here to decide whether there is at all a fundamental right to privacy... The question whether Aadhaar violates privacy will be decided later by the five judges. So now you [Centre] have said privacy is a fundamental right,” the Chief Justice told Mr. Venugopal.
At this, Additional Solicitor General Tushar Mehta intervened for some of the States, saying he wanted to argue that “privacy is a right but not a fundamental right.”
“But he [Mr. Venugopal] has already said that privacy is a fundamental right,” Chief Justice Khehar responded to Mr. Mehta.
Challenging aspects of Aadhaar
The Times of India, Aug 21 2017
A nine-judge Constitution bench is set to give its judgment on whether a fundamental right to privacy exists under the Constitution.The verdict will remain authoritative for decades, defining the relationship between citizens and the state in the digital era. It will rightaway impact the outcome of about 24 cases where various aspects of Aadhaar have been challenged, petitioners arguing that the scheme and making it mandatory violates fundamental rights to privacy and equality.Here, a lowdown ahead of the privacy hearing
Will the nine-judge bench decide on Aadhaar?
The bench will decide whether a fundamental right to privacy exists under the Indian Constitution. This bench will not decide the fate of Aadhaar, only the nature and status of the right to privacy under the Constitution.
The SC ruling will, however, be extremely important in deciding the fate of Aadhaar and will impact all public and private services with which Aadhaar is linked, from requesting an ambulance to opening a bank account. It will have far-reaching ramifications in this digital age: how much can the state know about us, and what it can do with that knowledge? The right to privacy impacts many more issues than just Aadhaar and will allow claims in the context of beef ban laws, prohi bition, women's reproductive rights as well.
What are the arguments on either side?
The petitioners say that the SC has recognised the fundamental right to privacy in an unbroken chain of judgments. They say privacy is associated with and is the bulwark of other rights. There can be no dignity without privacy , and dignity is part of the Preamble, which is part of the Constitution's basic structure. Privacy is located in the golden trinity of Articles trinity of Articles 14, 19, and 21. They argue that the Constitution is a living document. Its interpretation must be in accord with passage of time and developments in law. They say India has international obligations to recognise a fundamental right to privacy.
The respondents say that privacy is a vague concept, and vague concepts cannot be made fundamental rights. Some aspects of privacy are covered by Article 21 and its other aspects should be regulated by laws only , not separately as a fundamental right.Right to life of others is more important than right to privacy .If right to privacy impedes Aadhaar, then it would deprive millions of food and shelter. They argue framers intentionally did not include privacy in fun damental rights section.
Without linking Aadhaar, will government schemes be impacted?
There is conflicting data.A 2012 study by National Institute of Public Finance and Policy estimated that linking Aadhaar could save a tenth of money spent on PDS and MGNREGS schemes. But the study was criticised for using outdated data on leakages, and overestimating the number of ghost beneficiaries.
It is also unclear how much of the `savings' from linking Aadhaar to schemes is because genuine beneficiaries are now excluded. In a study of Hyderabad PDS outlets linked to Aadhaar, nearly 10% of households reported technical problems with Aadhaar due to which they did not receive rations.The Economic Survey 201516 claimed that linking Aadhaar to LPG subsidies had saved the government 25%. But the Comptroller and Auditor General (CAG) estimated that 92% of this `saving' was due to the fall in global oil prices.
Apart from these uncertain savings, rollout of government schemes would continue as earlier without Aadhaar, since Aadhaar is meant to help existing schemes. In fact, there have been reports that rollout of Aadhaar-based systems is posing some problems. Fingerprint authentication often does not work if labourers' hands are callused; the elderly and disabled have trouble accessing affordable transport go to government centres, instead of sending others as they did earlier; technical problems abound with uneven quality of connections and devices.
Is the demand for citizen data the issue, or the security of the data?
Both. Creating one database of all details for an all-purpose ID (Aadhaar) creates its own problems -the spectre of surveillance, the possibility of exclusion from all government services, among others. On the security front, several experts believe that for centralised databases, “the question is not whether it can be hacked, but when.“
The SC verdict, 2017
See graphic, 'What the SC judgement on the right to privacy said, August 2017'
See graphic, 'Issue that the right to privacy ruling, 2017, can impact'
HIGHLIGHTS
The order affects all 134 crore Indians
The apex court overruled previous judgments on the privacy issue
It overruled an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case
NEW DELHI: The Supreme Court (SC) ruled that privacy is a fundamental right because it is intrinsic to the right to life.
"Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Constitution," the SC's nine-judge bench+ ruled unanimously. It added that the right to privacy is intrinsic to the entire fundamental rights chapter of the Constitution.
This judgement is a blow to Aadhaar as the Centre now has to convince SC that forcing citizens to give a sample of their fingerprints and their iris scan does not violate privacy. The SC bench's judgment will touch the lives of 134 crore Indians. It was not meant to decide on the fate of Aadhaar, just on whether privacy of an individual was a part of their inviolable fundamental rights. What this means is a five-judge bench of the SC will test the validity of Aadhaar on the touchstone of privacy as a fundamental right.
The apex court's nine-judge bench overruled previous judgments on the issue- an eight-judge bench judgment in the MP Sharma case and a six-judge bench judgment in Kharak Singh case, both of which had ruled that privacy is not a fundamental right+ . The bench comprised Justices Khehar, J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer.
Attorney general K K Venugopal, who had argued that right to privacy cannot be a fundamental right, welcomed the SC decision. "Whatever the 9-judge bench says is the correct law," said Venugopal to TOI.
The question about the constitutional status of right to privacy arose in a bunch of petitions, led by retired HC judge KS Puttaswamy, which in 2012, challenged the UPA government's decision to introduce the biometric data-enabled Aadhaar ID for citizens. The petitioners included first Chairperson of National Commission for Protection of Child Rights and Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, and others.
This question was referred to a five-judge Constitution bench on August 11, 2015.
The five-judge bench, led by Chief Justice JS Khehar, met on July 18 to decide the issue, but was told by the Centre that the strength of the bench was inadequate as an eight-judge bench in the MP Sharma case in 1954, and a six-judge bench in the Kharak Singh case in 1962, had ruled that right to privacy was not a fundamental right. The bench was quick to refer the matter to a nine-judge bench, which began hearing arguments from July 19, and concluded hearing on August 2, after a lively debate involving renowned lawyers to greenhorns.
The Centre, through attorney general KK Venugopal, argued against privacy being an inviolable fundamental right+ . This argument presented to the bench the constitutional complications intrinsic to privacy when its width and play is examined through the crosswires of fundamental rights.
"Privacy, even if assumed to be a fundamental right, consists of a large number of sub-species... It will be constitutionally impermissible to declare each and every instance of privacy a fundamental right. Privacy has varied connotations when examined from different aspects of liberties. If the SC wants to declare it a fundamental right, then it probably has to determine separately the various aspects of privacy and the extent of violation that could trigger a constitutional remedy," Venugopal said.
Meanwhile, the petitioners contended that the right to privacy was "inalienable" and "inherent" to the most important fundamental right which is the right to liberty. They said that right to liberty, which also included the right to privacy, was a pre-existing "natural right" which the Constitution acknowledged and guaranteed to the citizens in case of infringement by the state.
Citizens’ right to make choices
These educated and well informed ‘advisers’, sensitive towards health of citizens’ fundamental rights, must read the August 24, 2017 judgment in K Puttaswamy case (Aadhaar-privacy) by a ninejudge bench of the Supreme Court, which bestowed cardinal importance to citizen’s right to make choices.
The SC had said: “Privacy enables each individual to take crucial decisions which find expression in human personality. It enables individuals to preserve beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demand for homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude.”
Being in the thick of coalition politics for nearly a quarter century, Pranab Da had emerged as an intelligent and tactical politician before taking retirement from active politics to become the first citizen of the country. Leisurely work schedule of a President must have given him enough time to reflect back, critically analyse and learn from steps and decisions he took in his active politician days.
The solitude of life, as a retired President, can make an active mind either ill or wiser. But a voracious reader in Pranab Da, would have sharpened his political mind and taken it to the philosophical level.
In Puttaswamy case, the SC had turned philosophical when it said: “Privacy represents the core of the human personality and recognises the ability of each individual to make choices and to take decisions governing matters intimate and personal.”
“Yet, it is necessary to acknowledge that individuals live in communities and work in communities. Their personalities affect and, in turn are shaped by their social environment. The individual is not a hermit. The lives of individuals are as much a social phenomenon. In their interactions with others, individuals are constantly engaged in behavioural patterns and in relationships impacting on the rest of society.
Equally, the life of the individual is being consistently shaped by cultural and social values imbibed from living in the community. This state of flux which represents a constant evolution of individual personhood in the relationship with the rest of society provides the rationale for reserving to the individual a zone of repose.”
What the SC said in the concluding part of the judgement would make the ‘advisers’ wiser — “Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture.” Let the ex-President be free to make his choice and exercise right to free speech. What he speaks at R-S-S can always be subjected to critical analysis.
1976, emergency-era judgment suspending right to life overruled
It required an exceptionally courageous decision to erase a historical blunder -the 1976 Emergency-era judgment upholding the government's decision to suspend right to life -which had remained a blot in the shining 67-year run of the Supreme Court.
When a nine-judge SC bench did that on Thursday through Justice D Y Chandrachud's lead judgment, the main author was carrying out the unenviable task of overruling his father Justice Y V Chandrachud, who was part of the majority judgment which had endorsed the Indira Gandhi government's decision to suspend right to life during Emergency.
The majority judgment of the 1976 verdict was written by Justice M H Beg with whom then CJI A N Ray and Justices Chandrachud and P N Bhagwati had agreed.Justice H R Khanna had strongly dissented, stressing the inviolability of right to life.
Driven passionately to correct a constitutional blunder to which his father was a party 41 years ago, son Chandrachud displayed steely resolve to tread the constitutional path and declare, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed... ADM Jabalpur must be and is accordingly overruled.
“Justice Khanna was clearly right in holding that the recognition of right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution, the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.
On the quality and value of A D M Jabalpur judgment, Justice Chandrachud said, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.“
SC Overturns 63-Yr-Old Verdict
Privacy is a postulate of human dignity itself: Chandrachud, August 25, 2017: The Times of India
9-Judge Bench Unanimously Declares Privacy A Fundamental Right, Says It's Intrinsic To Right To Life & Personal Liberty
Court Overturns 63-Yr-Old Verdict
Propelling India into the ranks of progressive societies that ensure privacy of their citizens, a nine-judge Supreme Court bench unanimously ruled on Thursday that privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty and as part of the freedoms guaranteed by the Constitution.
In a historic judgment, the bench headed by CJI J S Khehar -which included Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer -upturned a 63-year-old ruling of an eight-judge bench that had refused to recognise privacy as a fundamental right. The 547-page ruling set up many landmarks to outline what constitutes a dignified life and the obligation of the state to help its citizens lead one.
It emphasised the value of dissent and tolerance, besides the rights of minorities, including sexual minorities, clearing the way for the possible voiding of the SC's controversial order to reverse the decriminalisation of consensual gay sex by the Delhi high court. It also boldly delineated the limits to the state's intervention in the lives of citizens.
However, the bench was alive to the challenges thrown up by technology and recognised that a balance needs to be maintained between the right to privacy and the right of the state to impose reasonable restrictions on it for legitimate aims such as national security , prevention and investigation of crimes and distribution of welfare resources.
What stood out was privacy being declared intrinsic to right to life and that it formed part of the sacrosanct chapter on fundamental rights in the Constitution, which has been regarded since 1973 as part of the basic structure, immune from Parliament's interference. The unanimo us verdict was, “Right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.“
The bench added, “Like the right to life and liberty , privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy . Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reaso nable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.“
With this ruling, the constitution bench set the stage for a three-judge bench to decide the validity of Aadhaar, challenged by 21petitions led by retired HC judge K S Puttaswamy , by scrutinising whether collection of biometric data and linking it with various activities of citizens violated their right to privacy.
But equally significant were two ingrained sub-rulings -one, it said a two-judge SC bench in 2014 had wrongly curtailed the sexual preferences of the LGBT community and, two, it attempted to erase the Emergency-era judgment in the ADM Jabalpur case by overruling its logic that the government could suspend right to life in critical situations.
It was Justice Chandrachud's 265-page illustrative, analytical and incisive judgment that formed the core of the nine-judge bench's decision. Justice Chandrachud wrote the judgment for himself and for Justices Khehar, Agrawal and Nazeer. The other judges -Justices Chelameswar, Bobde, Nariman, Sapre and Kaul -agreed through separate judgments.
Referring to as many as 300 judgments from India and abroad, Justice Chandrachud demolished the Centre's argument that privacy was a common law right that was a subspecies of many rights, and hence, incapable of being termed as a standalone homogeneous fundamental right.
“Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees,“ he said.
Defining the nature and character of privacy , he said, “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone.The concept is founded on the autonomy of the individual.The ability of an individual to make choices lies at the core of the human personality.“ Elaborating on the con cept and attempting to define the limitless footprints of privacy in an individual's activities, Justice Chandrachud said, “The body and the mind are inseparable elements of the human personality . The integrity of the body and the sanctity of the mind can exist on the foundation that each indi vidual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of personality . Hence, privacy is a postulate of human dignity itself.“
“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the in dividual a zone of choice and self-determination,“ the judgment said.
“The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy . Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life,“ the verdict said.
Justice Chandrachud wrote the judgment for himself and for Justices Khehar, Agrawal and Nazeer. The other judges -Justices Chelameswar, Bobde, Nariman, Sapre and Kaul -agreed through separate judgments.
Reaction to the judgement
SC's verdict on privacy: Who said what, Aug 24, 2017: The Times of India
The Supreme Court in a landmark judgment, declared that right to privacy was a Fundamental right under the Constitution. Here is how politicians, activists and social media influencers reacted on the apex court's remarkable order:
Rahul Gandhi
Congress vice president Rahul Gandhi termed the SC's verdict as "a victory for every Indian".
Arvind Kejriwal
Delhi Chief Minister Arvind Kejriwal thanked the Supreme Court for this important judgement.
Mamata Banerjee
West Bengal Chief Minister Mamata Banerjee also welcomed the apex court's judgement on privacy.
P Chidambaram
Senior Congress leader P Chidambaram while welcoming the SC's decision said,"The Aadhar we conceived was perfectly compatible with the Right To Privacy.It is the interpretation of this government of the Article 21 which is an invasion of Right To Privacy." He also said that "there is no fault in the Aadhar concept but there is fault in how this government plans to use or misuse Aadhar as a tool."
Jyotiraditya Scindia
Senior Congress leader and Member Parliament from Madhya Pradesh Jyotiraditya Scindia welcomed Supreme Court's unanimous verdict.
Subramanian Swamy
Senior BJP leader Subramanian Swamy pinned his hope on modification of Aadhaar.
Omar Abdullah
After SC's verdict, former Jammu and Kashmir Chief Minister Omar Abdullah expressed his happiness that he now has right to privacy.
Rajeev Chandrasekhar
BJP MP Rajeev Chandrasekhar was glad over the SC's verdict.
Randeep S Surjewala
Congress spokesperson Randeep S Surjewala said that the SC's verdict is a decisive defeat for BJP Government.
Kamal Haasan
SC upholds the right to privacy Nothing vague or amorphous about it. People thank the Honourable Judges. These are moments that make India.
Impact on Aadhaar
Remarkable change of stance
Menaka Guruswamy, August 25, 2017: The Times of India
The privacy verdict signi fies a remarkable shift in the self-imagination of the Supreme Court from a reticent post-colonial liberty court to an erudite constitutional court for a modern democracy .While the Constitution's right to life and personal liberty was expanded to protect socio-economic rights like health, livelihood and education, it was correspondingly fragile on personal liberty -a classical civil right. The privacy verdict is remarkable because it's a shift away from the apex court that's deferred to the State when it overpowers private citizens' `right to be left alone'.
The writer practices law in SC and is visiting faculty at Columbia Law School
SC: Data storage is permissible to check leak of resources
The landmark ruling giving right to privacy the status of a fundamental right may not serve as a dampener for Aadhaar-based schemes as the Supreme Court listed the need, apart from security concerns, to prevent pilferage of scarce public resources as among grounds on which the government would be justified in collecting and storing data.
If, on the one hand, the SC rejected the Centre's argument that privacy could not be treated as a fundamental right to scuttle the right of impoverished millions to access food through Aadhaarlinked welfare schemes, on the other hand, it unhesitatingly conceded the need for collection of personal data by the government to ensure essential items reach the needy .
The Centre has cited diversion of subsidies for the poor as the chief defence for storage of personal data of citizens on the Aadhaar platform.
Justice D Y Chandrachud, writing the main judgment, said: “In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society . There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients.“
He added: “Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data.“
However, he said the data collected by the state had to be utilised for legitimate purposes and not in an unauthorised manner for extraneous purposes. “This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns,“ he said.
“Prevention and investigation of crime and protection of revenue are among the legitimate aims of the state.Digital platforms are a vital tool of ensuring good governance in a social welfare state.Information technology , legitimately deployed, is a powerful enabler in the spread of innovation and knowledge,“ he said. This is in sync with the Modi government's publicly declared policy in making Aadhaar mandatory .
But the final outcome of the petitions challenging the validity of Aadhaar will depend on the manner a threejudge bench construes right to privacy, the newly-declared fundamental right, while scrutinising the alleged privacy invasive element of biometric data-enabled Aadhaar.
Justice Chandrachud said: “Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways.Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy .
“On the other hand, the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the state preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.“
UID: Right To Privacy Subject To Restrictions
Says Right To Privacy Subject To Restrictions
There is sufficient leeway for the government to pursue digitalisation programmes, many of which are centred around Aadhaar, with the Supreme Court setting out “legitimate state aims“ that can allow linkage of UID with social welfare schemes.
The SC's clear cut reference to national security , prevention and investigation of crime, encouraging innovation and making delivery of welfare programmes' more efficient as permissible objectives will help preserve Aadhaar-driven programmes that have been challenged over privacy issues.
While the petitioners had sought the establishment of privacy as a fundamental right by itself the court has located it within the right to life and liberty and therefore subject to restrictions that apply to Article 21.This would mean initiatives like linking Aadhaar to tax returns can be justified on the grounds that this will help check fraud through use of multiple PAN cards commonly used to duck tax.
The judgement provides grounds for the government to argue that the use of Aadhaar, and the consequent implications for privacy , need to be weighed against whether UID has improved governance. So if the government can show duplicate and ghost beneficiaries have been eliminated, graft reduced and right beneficiaries benefited, it will have a strong case for use of biometric verification.
Data protection is the other crucial issue as the SC expressed concern during arguments that it did not want information to leak and users harassed by telemarketers. Here UID's own security systems -dispersal of servers and protocols requiring several staff to share codes before accessing internally -are as important as guidelines for government and private users of KYC services.
The SC judgement does make it evident that the government will have to present a robust reasoning for expansion for Aadhaar use to more areas apart from delivery of government services. But the court itself has asked for Aadhaar linkage to mobile telephone connections and its use for verification of identities does not seem likely to be affected.
The international references to use of biometrics include maintainence of DNA profiles of convicts in some countries like the US where the facility has helped law agencies resolve unsolved crimes while also, on occasion, establishing a wrongly convicted person as innocent. The expansion of privacy into a fundamental right, however, means the provisions of the Aadhaar Act not to allow collation of data on individuals will be taken more seriously by the current and succeeding governments. On the other hand, the ruling that there is no general right to privacy means government action will continue.
The writer is a senior Supreme Court advocate
Implications go beyond Aadhaar
Alok Prasanna Kumar, August 25, 2017: The Times of India
The implications of this judgment go beyond Aadhaar. It does not necessarily mean that legislations will be struck down for being unconstitutional as that depends on the circumstances in each case and the justifications offered. Nonetheless, those arguing against laws like the ban on beef and alcohol consumption have been given a new and powerful ground to challenge intrusive laws.
The writer is senior fellow at Vidhi Centre for Legal Policy
Impact on government
’State interest’ loophole remains
Chinmayi Arun, August 25, 2017: The Times of India
The judgment comes with a barb in its tail -the Supreme Court has carved out a potential loophole through which the state can violate the right to privacy after all. It has held that privacy may be violated when there is a legitimate state interest. The majority judgment has cited web-monitoring for thwarting cyber attacks and terrorists, and social welfare programmes as potential situations in which the state might violate the right to privacy .
This means that like the phone-tapping judgment, the privacy judgment has not done enough to curtail state surveillance. But it must be commended for protecting the dignity and privacy of the individual in the context of sexuality and personal space.
The writer is executive director, Centre for Communication Governance and faculty associate of the Berkman Center, Harvard University
State intrusion into certain aspects of human life
The Times of India, Aug 26 2017
In his separate but concurrent judgment on right to privacy, Justice J Chelameswar said the state should not have “unqualified authority“ to intrude into certain aspects of human life which amounts to violation of right to privacy.
“I do not think that anybody in this country would like to have the officers of the state intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life,“ he said.
“Freedom of social and political association is guaranteed to citizens under Article 19(1)(c). Personal association is still a doubtful area. The decision making process regarding the freedom of association, freedoms of travel and residence are purely private and fall within the realm of the right of privacy. It is one of the most intimate decisions,“ he said.
“All liberal democracies believe that the state should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent state's interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.It is part of liberty within the meaning of that expression in Article 21,“ he said.
Religious and ancient texts also favour right to privacy: Justice Bobde
Referring to religious and ancient books, Justice S A Bobde said people's right to privacy was recognised from time immemorial and every individual was entitled to perform his actions in private without being observed or spied upon.
Quoting Ramayana, Bible, Hadith, Arthashastra and Grihya Sutras, Justice Bobde said right to privacy had been prescribed as an inalienable right in all religions.
“Not recognising character of privacy as a fundamental right is likely to erode the very sub-stratum of personal liberty guaranteed by the Constitution.The decided cases clearly demonstrate that particular fundamental rights could not have been exercised without the recognition of right of privacy as a fundamental right. Any de-recognition or diminution in the importance of right of privacy will weaken fundamental rights which have been expressly conferred,“ he said.
“Even in the ancient and religious texts of India, a well-developed sense of privacy is evident. A woman ought not to be seen by a male stranger seems to be a wellestablished rule in the Ramayana. Grihya Sutras prescribe the manner in which one ought to build one's house in order to protect the privacy of its inmates and preserve its sanctity during the performance of religious rites, or when studying the Vedas or taking meals. The Arthashastra prohibits entry into another's house, without the owner's consent. Similarly in Islam, peeping into others' houses is strictly prohibited.The Hadith makes it reprehensible to read correspondence between others. In Christianity, we find the aspiration to live without interfering in the affairs of others in the text of the Bible,“ he said.
Right to privacy is not an elitist concept: Justice Nariman
Justice R F Nariman rejected the Centre's submission that right to privacy was an “elitist construct“ which could not be declared a fundamental right in a poor country where people were denied basic amenities of life.
“The attorney general argued that between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a fundamental right. Elaborating further, he stated that in a developing country where millions of people are denied the basic necessities of life and do not even have shelter, food, clothing or jobs, no claim to a right to privacy as a fundamental right would lie. First and foremost, we do not find any conflict between the right to life and the right to personal liberty,“ Justice Nariman said.
“Both rights are natural and inalienable rights of every human being and are required in order to develop hisher personality to the fullest. Indeed, the right to life and the right to personal liberty go handin-hand, with the right to personal liberty being an extension of the right to life. A large number of poor people that (K K ) Venugopal talks about are persons who in today's completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context,“ he said.
Unity & integrity of nation can't survive unless dignity of citizen is guaranteed: Justice Sapre
Justice Abhay Manohar Sapre said right to privacy was essentially a natural right, which every human inhered by birth and it could not be denied.
Justice Sapre said, “In my view, unity and integrity of the nation cannot survive unless the dignity of every individual citizen is guaranteed. It is inconceivable to think of unity and integration without the assurance to an individual to preserve his dignity. In other words, regard and respect by every individual for the dignity of the other one brings the unity and integrity of the nation.
“In my considered opinion, right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.
“One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilised society governed by rule of law always recognises in every human being and is under obligation to recognise such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed.“
He, however, said right to privacy was not an absolute right but was subject to reasonable restrictions, which the state was entitled to impose on the basis of social, moral and compelling public interest in accordance with law.
Clear lines drawn that govt can't overstep
Shyam Divan, August 25, 2017: The Times of India
Unlike the triple talaq de cision that had immedi ate practical impact, this verdict does not have a clear liberating takeaway , but it secures a certain space for all Indian citizens. Many passages argue for balance as well. It agrees that privacy is not an absolute value, and that the state still has the right to use new technologies. But it has drawn clear lines that government cannot overstep.
It also overturned ADM Jabalpur, one of the biggest blots on Indian jurisprudence.The contention that the right to move court to enforce the personal liberty under Art. 21 can be overruled, as happened during the Emergency , has been expressly overruled. On Aadhaar, the hard battle will remain. How can the Indian state barter health benefits for a citizen's fingerprints?
Hopefully , this judgement will get people thinking harder about such transactions.
Impact on Sec. 377 of the IPC
See graphic: Impact of the SC verdict in August 2017 on Section 377 of the Indian Penal Code ‘'
See graphic, ' Right to Privacy, a timeline, 2012-August 2017‘
Suggestions
SC: govt should draw up adequate data protection regime
The Supreme Court did not have difficulty in holding privacy as a fundamental right and mandated the government to draw up a robust data protection regime to shield people's private information from intrusion in today's internet era.
The bench recognised the grave danger to privacy because of the complexities thrown up by sharing of personal data and firms collating them to create meta-data for commercial exploitation.
“One of the chief concerns which the formulation of a data protection regime has to take into account is that while the web is a source of lawful activity -both personal and commercial -concerns of national security intervene since the seamless structure of the web can be exploited by terrorists to wreak havoc and destruction on civilised societies.Cyber attacks can threaten financial systems,“ it said.
In the lead judgment written by Justice D Y Chandrachud, the SC talked about the hidden danger and said: “Data mining processes together with knowledge discovery can be combined to create facts about individuals. Meta-data and the internet of things have the ability to redefine human existence in ways which are yet fully to be perceived.“
The SC said India was fast becoming the hunting ground for such data. Telecom Regulatory Authority of India's figures as on December 31, 2016 show the total number of internet subscribers at 391.50 million, reflecting an 18.04% change over the previous quarter. Total internet subscribers per 100 population stood at 30.56, urban internet subscribers were 68.86 per 100 population and rural internet subscribers were 13.08.
Justice Chandrachud said: “Apart from safeguarding privacy , data protection regimes seek to protect the autonomy of the individual.This is evident from the em phasis in the European data protection regime on the centrality of consent. Related to the issue of consent is the requirement of transparency which requires a disclosure by the data recipient of information pertaining to data transfer and use.“
He added: “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.“
The SC said during the hearing on the right to privacy issue that the government had placed on record an Office Memorandum of July 31, 2017, by which it had constituted a panel led by Justice B N Srikrishna to make recommendations after reviewing data protection norms in the country .
“Since the government has initiated the process of reviewing the entire area of data protection, it would be appropriate to leave the matter for expert determination so that a robust regime for the protection of data is put into place.We expect that the Union government shall follow up on its decision by taking all necessary and proper steps,“ it said.
SC: non-state actors should be regulated to protect citizens’ rights
Noting that technological development had enabled social networking sites and web service provider companies to invade privacy of individuals by collecting and processing their data, the SC said non-state actors needed to be regulated to protect rights of citizens in the digital age and they should not be allowed to exercise control over people like “big brother“.
The SC said the capacity of online firms to invade homes and privacy of their users stood enhanced and asked the Centre to step in.
“We are in an information age. The information explosion has manifold advantages but also some disadvantages.The access to information, which an individual may not want to give, needs protection of privacy ,“ Justice Sanjay Kishan Kaul said in his separate judgment. “Digital footprints can be analysed computationally to reveal patterns, trends, and associations. This is the age of big data... A large number of people would like to keep such search history pri vate, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising.“
Emphasising the need to regulate firms, Kaul said data was generated not just by active sharing of information but also passively , with every click on the `world wide web'.He said: “Uber knows our whereabouts. Facebook... knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to...“
He added: “George Orwell created a fictional state in `Nineteen Eighty-Four'. Today , it can be a reality . The technological development today can enable not only the state but also big corporations and private entities to be the big brother.“
1976, emergency-era judgment suspending right to life overruled
It required an exceptionally courageous decision to erase a historical blunder -the 1976 Emergency-era judgment upholding the government's decision to suspend right to life -which had remained a blot in the shining 67-year run of the Supreme Court.
When a nine-judge SC bench did that on Thursday through Justice D Y Chandrachud's lead judgment, the main author was carrying out the unenviable task of overruling his father Justice Y V Chandrachud, who was part of the majority judgment which had endorsed the Indira Gandhi government's decision to suspend right to life during Emergency.
The majority judgment of the 1976 verdict was written by Justice M H Beg with whom then CJI A N Ray and Justices Chandrachud and P N Bhagwati had agreed.Justice H R Khanna had strongly dissented, stressing the inviolability of right to life.
Driven passionately to correct a constitutional blunder to which his father was a party 41 years ago, son Chandrachud displayed steely resolve to tread the constitutional path and declare, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed... ADM Jabalpur must be and is accordingly overruled.
“Justice Khanna was clearly right in holding that the recognition of right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution, the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend.
On the quality and value of A D M Jabalpur judgment, Justice Chandrachud said, “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.“
SC Overturns 63-Yr-Old Verdict
Privacy is a postulate of human dignity itself: Chandrachud, August 25, 2017: The Times of India
9-Judge Bench Unanimously Declares Privacy A Fundamental Right, Says It's Intrinsic To Right To Life & Personal Liberty
Court Overturns 63-Yr-Old Verdict
Propelling India into the ranks of progressive societies that ensure privacy of their citizens, a nine-judge Supreme Court bench unanimously ruled on Thursday that privacy is a fundamental right, protected as an intrinsic part of the right to life and personal liberty and as part of the freedoms guaranteed by the Constitution.
In a historic judgment, the bench headed by CJI J S Khehar -which included Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer -upturned a 63-year-old ruling of an eight-judge bench that had refused to recognise privacy as a fundamental right. The 547-page ruling set up many landmarks to outline what constitutes a dignified life and the obligation of the state to help its citizens lead one.
It emphasised the value of dissent and tolerance, besides the rights of minorities, including sexual minorities, clearing the way for the possible voiding of the SC's controversial order to reverse the decriminalisation of consensual gay sex by the Delhi high court. It also boldly delineated the limits to the state's intervention in the lives of citizens.
However, the bench was alive to the challenges thrown up by technology and recognised that a balance needs to be maintained between the right to privacy and the right of the state to impose reasonable restrictions on it for legitimate aims such as national security , prevention and investigation of crimes and distribution of welfare resources.
What stood out was privacy being declared intrinsic to right to life and that it formed part of the sacrosanct chapter on fundamental rights in the Constitution, which has been regarded since 1973 as part of the basic structure, immune from Parliament's interference. The unanimo us verdict was, “Right to privacy is protected as an intrinsic part of right to life and personal liberty under Article 21 and as part of the freedoms guaranteed by Part III.“
The bench added, “Like the right to life and liberty , privacy is not absolute. The limitations which operate on the right to life and personal liberty would operate on the right to privacy . Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reaso nable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.“
With this ruling, the constitution bench set the stage for a three-judge bench to decide the validity of Aadhaar, challenged by 21petitions led by retired HC judge K S Puttaswamy , by scrutinising whether collection of biometric data and linking it with various activities of citizens violated their right to privacy.
But equally significant were two ingrained sub-rulings -one, it said a two-judge SC bench in 2014 had wrongly curtailed the sexual preferences of the LGBT community and, two, it attempted to erase the Emergency-era judgment in the ADM Jabalpur case by overruling its logic that the government could suspend right to life in critical situations.
It was Justice Chandrachud's 265-page illustrative, analytical and incisive judgment that formed the core of the nine-judge bench's decision. Justice Chandrachud wrote the judgment for himself and for Justices Khehar, Agrawal and Nazeer. The other judges -Justices Chelameswar, Bobde, Nariman, Sapre and Kaul -agreed through separate judgments.
Referring to as many as 300 judgments from India and abroad, Justice Chandrachud demolished the Centre's argument that privacy was a common law right that was a subspecies of many rights, and hence, incapable of being termed as a standalone homogeneous fundamental right.
“Once privacy is held to be an incident of the protection of life, personal liberty and of the liberties guaranteed by the provisions of Part III of the Constitution, the submission that privacy is only a right at common law misses the wood for the trees,“ he said.
Defining the nature and character of privacy , he said, “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone.The concept is founded on the autonomy of the individual.The ability of an individual to make choices lies at the core of the human personality.“ Elaborating on the con cept and attempting to define the limitless footprints of privacy in an individual's activities, Justice Chandrachud said, “The body and the mind are inseparable elements of the human personality . The integrity of the body and the sanctity of the mind can exist on the foundation that each indi vidual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognising a zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of personality . Hence, privacy is a postulate of human dignity itself.“
“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the in dividual a zone of choice and self-determination,“ the judgment said.
“The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy . Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life,“ the verdict said.
Justice Chandrachud wrote the judgment for himself and for Justices Khehar, Agrawal and Nazeer. The other judges -Justices Chelameswar, Bobde, Nariman, Sapre and Kaul -agreed through separate judgments.
Reaction to the judgement
SC's verdict on privacy: Who said what, Aug 24, 2017: The Times of India
The Supreme Court in a landmark judgment, declared that right to privacy was a Fundamental right under the Constitution. Here is how politicians, activists and social media influencers reacted on the apex court's remarkable order:
Rahul Gandhi
Congress vice president Rahul Gandhi termed the SC's verdict as "a victory for every Indian".
Arvind Kejriwal
Delhi Chief Minister Arvind Kejriwal thanked the Supreme Court for this important judgement.
Mamata Banerjee
West Bengal Chief Minister Mamata Banerjee also welcomed the apex court's judgement on privacy.
P Chidambaram
Senior Congress leader P Chidambaram while welcoming the SC's decision said,"The Aadhar we conceived was perfectly compatible with the Right To Privacy.It is the interpretation of this government of the Article 21 which is an invasion of Right To Privacy." He also said that "there is no fault in the Aadhar concept but there is fault in how this government plans to use or misuse Aadhar as a tool."
Jyotiraditya Scindia
Senior Congress leader and Member Parliament from Madhya Pradesh Jyotiraditya Scindia welcomed Supreme Court's unanimous verdict.
Subramanian Swamy
Senior BJP leader Subramanian Swamy pinned his hope on modification of Aadhaar.
Omar Abdullah
After SC's verdict, former Jammu and Kashmir Chief Minister Omar Abdullah expressed his happiness that he now has right to privacy.
Rajeev Chandrasekhar
BJP MP Rajeev Chandrasekhar was glad over the SC's verdict.
Randeep S Surjewala
Congress spokesperson Randeep S Surjewala said that the SC's verdict is a decisive defeat for BJP Government.
Kamal Haasan
SC upholds the right to privacy Nothing vague or amorphous about it. People thank the Honourable Judges. These are moments that make India.
Impact on Aadhaar
Remarkable change of stance
Menaka Guruswamy, August 25, 2017: The Times of India
The privacy verdict signi fies a remarkable shift in the self-imagination of the Supreme Court from a reticent post-colonial liberty court to an erudite constitutional court for a modern democracy .While the Constitution's right to life and personal liberty was expanded to protect socio-economic rights like health, livelihood and education, it was correspondingly fragile on personal liberty -a classical civil right. The privacy verdict is remarkable because it's a shift away from the apex court that's deferred to the State when it overpowers private citizens' `right to be left alone'.
The writer practices law in SC and is visiting faculty at Columbia Law School
SC: Data storage is permissible to check leak of resources
The landmark ruling giving right to privacy the status of a fundamental right may not serve as a dampener for Aadhaar-based schemes as the Supreme Court listed the need, apart from security concerns, to prevent pilferage of scarce public resources as among grounds on which the government would be justified in collecting and storing data.
If, on the one hand, the SC rejected the Centre's argument that privacy could not be treated as a fundamental right to scuttle the right of impoverished millions to access food through Aadhaarlinked welfare schemes, on the other hand, it unhesitatingly conceded the need for collection of personal data by the government to ensure essential items reach the needy .
The Centre has cited diversion of subsidies for the poor as the chief defence for storage of personal data of citizens on the Aadhaar platform.
Justice D Y Chandrachud, writing the main judgment, said: “In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society . There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients.“
He added: “Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data.“
However, he said the data collected by the state had to be utilised for legitimate purposes and not in an unauthorised manner for extraneous purposes. “This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns,“ he said.
“Prevention and investigation of crime and protection of revenue are among the legitimate aims of the state.Digital platforms are a vital tool of ensuring good governance in a social welfare state.Information technology , legitimately deployed, is a powerful enabler in the spread of innovation and knowledge,“ he said. This is in sync with the Modi government's publicly declared policy in making Aadhaar mandatory .
But the final outcome of the petitions challenging the validity of Aadhaar will depend on the manner a threejudge bench construes right to privacy, the newly-declared fundamental right, while scrutinising the alleged privacy invasive element of biometric data-enabled Aadhaar.
Justice Chandrachud said: “Both anonymity and privacy prevent others from gaining access to pieces of personal information yet they do so in opposite ways.Privacy involves hiding information whereas anonymity involves hiding what makes it personal. An unauthorised parting of the medical records of an individual which have been furnished to a hospital will amount to an invasion of privacy .
“On the other hand, the state may assert a legitimate interest in analysing data borne from hospital records to understand and deal with a public health epidemic such as malaria or dengue to obviate a serious impact on the population. If the state preserves the anonymity of the individual it could legitimately assert a valid state interest in the preservation of public health to design appropriate policy interventions on the basis of the data available to it.“
UID: Right To Privacy Subject To Restrictions
Says Right To Privacy Subject To Restrictions
There is sufficient leeway for the government to pursue digitalisation programmes, many of which are centred around Aadhaar, with the Supreme Court setting out “legitimate state aims“ that can allow linkage of UID with social welfare schemes.
The SC's clear cut reference to national security , prevention and investigation of crime, encouraging innovation and making delivery of welfare programmes' more efficient as permissible objectives will help preserve Aadhaar-driven programmes that have been challenged over privacy issues.
While the petitioners had sought the establishment of privacy as a fundamental right by itself the court has located it within the right to life and liberty and therefore subject to restrictions that apply to Article 21.This would mean initiatives like linking Aadhaar to tax returns can be justified on the grounds that this will help check fraud through use of multiple PAN cards commonly used to duck tax.
The judgement provides grounds for the government to argue that the use of Aadhaar, and the consequent implications for privacy , need to be weighed against whether UID has improved governance. So if the government can show duplicate and ghost beneficiaries have been eliminated, graft reduced and right beneficiaries benefited, it will have a strong case for use of biometric verification.
Data protection is the other crucial issue as the SC expressed concern during arguments that it did not want information to leak and users harassed by telemarketers. Here UID's own security systems -dispersal of servers and protocols requiring several staff to share codes before accessing internally -are as important as guidelines for government and private users of KYC services.
The SC judgement does make it evident that the government will have to present a robust reasoning for expansion for Aadhaar use to more areas apart from delivery of government services. But the court itself has asked for Aadhaar linkage to mobile telephone connections and its use for verification of identities does not seem likely to be affected.
The international references to use of biometrics include maintainence of DNA profiles of convicts in some countries like the US where the facility has helped law agencies resolve unsolved crimes while also, on occasion, establishing a wrongly convicted person as innocent. The expansion of privacy into a fundamental right, however, means the provisions of the Aadhaar Act not to allow collation of data on individuals will be taken more seriously by the current and succeeding governments. On the other hand, the ruling that there is no general right to privacy means government action will continue.
The writer is a senior Supreme Court advocate
Implications go beyond Aadhaar
Alok Prasanna Kumar, August 25, 2017: The Times of India
The implications of this judgment go beyond Aadhaar. It does not necessarily mean that legislations will be struck down for being unconstitutional as that depends on the circumstances in each case and the justifications offered. Nonetheless, those arguing against laws like the ban on beef and alcohol consumption have been given a new and powerful ground to challenge intrusive laws.
The writer is senior fellow at Vidhi Centre for Legal Policy
Impact on government
’State interest’ loophole remains
Chinmayi Arun, August 25, 2017: The Times of India
The judgment comes with a barb in its tail -the Supreme Court has carved out a potential loophole through which the state can violate the right to privacy after all. It has held that privacy may be violated when there is a legitimate state interest. The majority judgment has cited web-monitoring for thwarting cyber attacks and terrorists, and social welfare programmes as potential situations in which the state might violate the right to privacy .
This means that like the phone-tapping judgment, the privacy judgment has not done enough to curtail state surveillance. But it must be commended for protecting the dignity and privacy of the individual in the context of sexuality and personal space.
The writer is executive director, Centre for Communication Governance and faculty associate of the Berkman Center, Harvard University
State intrusion into certain aspects of human life
The Times of India, Aug 26 2017
In his separate but concurrent judgment on right to privacy, Justice J Chelameswar said the state should not have “unqualified authority“ to intrude into certain aspects of human life which amounts to violation of right to privacy.
“I do not think that anybody in this country would like to have the officers of the state intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the state as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life,“ he said.
“Freedom of social and political association is guaranteed to citizens under Article 19(1)(c). Personal association is still a doubtful area. The decision making process regarding the freedom of association, freedoms of travel and residence are purely private and fall within the realm of the right of privacy. It is one of the most intimate decisions,“ he said.
“All liberal democracies believe that the state should not have unqualified authority to intrude into certain aspects of human life and that the authority should be limited by parameters constitutionally fixed. Fundamental rights are the only constitutional firewall to prevent state's interference with those core freedoms constituting liberty of a human being. The right to privacy is certainly one of the core freedoms which is to be defended.It is part of liberty within the meaning of that expression in Article 21,“ he said.
Religious and ancient texts also favour right to privacy: Justice Bobde
Referring to religious and ancient books, Justice S A Bobde said people's right to privacy was recognised from time immemorial and every individual was entitled to perform his actions in private without being observed or spied upon.
Quoting Ramayana, Bible, Hadith, Arthashastra and Grihya Sutras, Justice Bobde said right to privacy had been prescribed as an inalienable right in all religions.
“Not recognising character of privacy as a fundamental right is likely to erode the very sub-stratum of personal liberty guaranteed by the Constitution.The decided cases clearly demonstrate that particular fundamental rights could not have been exercised without the recognition of right of privacy as a fundamental right. Any de-recognition or diminution in the importance of right of privacy will weaken fundamental rights which have been expressly conferred,“ he said.
“Even in the ancient and religious texts of India, a well-developed sense of privacy is evident. A woman ought not to be seen by a male stranger seems to be a wellestablished rule in the Ramayana. Grihya Sutras prescribe the manner in which one ought to build one's house in order to protect the privacy of its inmates and preserve its sanctity during the performance of religious rites, or when studying the Vedas or taking meals. The Arthashastra prohibits entry into another's house, without the owner's consent. Similarly in Islam, peeping into others' houses is strictly prohibited.The Hadith makes it reprehensible to read correspondence between others. In Christianity, we find the aspiration to live without interfering in the affairs of others in the text of the Bible,“ he said.
Right to privacy is not an elitist concept: Justice Nariman
Justice R F Nariman rejected the Centre's submission that right to privacy was an “elitist construct“ which could not be declared a fundamental right in a poor country where people were denied basic amenities of life.
“The attorney general argued that between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a fundamental right. Elaborating further, he stated that in a developing country where millions of people are denied the basic necessities of life and do not even have shelter, food, clothing or jobs, no claim to a right to privacy as a fundamental right would lie. First and foremost, we do not find any conflict between the right to life and the right to personal liberty,“ Justice Nariman said.
“Both rights are natural and inalienable rights of every human being and are required in order to develop hisher personality to the fullest. Indeed, the right to life and the right to personal liberty go handin-hand, with the right to personal liberty being an extension of the right to life. A large number of poor people that (K K ) Venugopal talks about are persons who in today's completely different and changed world have cell phones, and would come forward to press the fundamental right of privacy, both against the government and against other private individuals. We see no antipathy whatsoever between the rich and the poor in this context,“ he said.
Unity & integrity of nation can't survive unless dignity of citizen is guaranteed: Justice Sapre
Justice Abhay Manohar Sapre said right to privacy was essentially a natural right, which every human inhered by birth and it could not be denied.
Justice Sapre said, “In my view, unity and integrity of the nation cannot survive unless the dignity of every individual citizen is guaranteed. It is inconceivable to think of unity and integration without the assurance to an individual to preserve his dignity. In other words, regard and respect by every individual for the dignity of the other one brings the unity and integrity of the nation.
“In my considered opinion, right to privacy of any individual is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.
“One cannot conceive an individual enjoying meaningful life with dignity without such right. Indeed, it is one of those cherished rights, which every civilised society governed by rule of law always recognises in every human being and is under obligation to recognise such rights in order to maintain and preserve the dignity of an individual regardless of gender, race, religion, caste and creed.“
He, however, said right to privacy was not an absolute right but was subject to reasonable restrictions, which the state was entitled to impose on the basis of social, moral and compelling public interest in accordance with law.
Clear lines drawn that govt can't overstep
Shyam Divan, August 25, 2017: The Times of India
Unlike the triple talaq de cision that had immedi ate practical impact, this verdict does not have a clear liberating takeaway , but it secures a certain space for all Indian citizens. Many passages argue for balance as well. It agrees that privacy is not an absolute value, and that the state still has the right to use new technologies. But it has drawn clear lines that government cannot overstep.
It also overturned ADM Jabalpur, one of the biggest blots on Indian jurisprudence.The contention that the right to move court to enforce the personal liberty under Art. 21 can be overruled, as happened during the Emergency , has been expressly overruled. On Aadhaar, the hard battle will remain. How can the Indian state barter health benefits for a citizen's fingerprints?
Hopefully , this judgement will get people thinking harder about such transactions.
Impact on Sec. 377 of the IPC
See graphic: Impact of the SC verdict in August 2017 on Section 377 of the Indian Penal Code ‘'
See graphic, ' Right to Privacy, a timeline, 2012-August 2017‘
Suggestions
SC: govt should draw up adequate data protection regime
The Supreme Court did not have difficulty in holding privacy as a fundamental right and mandated the government to draw up a robust data protection regime to shield people's private information from intrusion in today's internet era.
The bench recognised the grave danger to privacy because of the complexities thrown up by sharing of personal data and firms collating them to create meta-data for commercial exploitation.
“One of the chief concerns which the formulation of a data protection regime has to take into account is that while the web is a source of lawful activity -both personal and commercial -concerns of national security intervene since the seamless structure of the web can be exploited by terrorists to wreak havoc and destruction on civilised societies.Cyber attacks can threaten financial systems,“ it said.
In the lead judgment written by Justice D Y Chandrachud, the SC talked about the hidden danger and said: “Data mining processes together with knowledge discovery can be combined to create facts about individuals. Meta-data and the internet of things have the ability to redefine human existence in ways which are yet fully to be perceived.“
The SC said India was fast becoming the hunting ground for such data. Telecom Regulatory Authority of India's figures as on December 31, 2016 show the total number of internet subscribers at 391.50 million, reflecting an 18.04% change over the previous quarter. Total internet subscribers per 100 population stood at 30.56, urban internet subscribers were 68.86 per 100 population and rural internet subscribers were 13.08.
Justice Chandrachud said: “Apart from safeguarding privacy , data protection regimes seek to protect the autonomy of the individual.This is evident from the em phasis in the European data protection regime on the centrality of consent. Related to the issue of consent is the requirement of transparency which requires a disclosure by the data recipient of information pertaining to data transfer and use.“
He added: “Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state.“
The SC said during the hearing on the right to privacy issue that the government had placed on record an Office Memorandum of July 31, 2017, by which it had constituted a panel led by Justice B N Srikrishna to make recommendations after reviewing data protection norms in the country .
“Since the government has initiated the process of reviewing the entire area of data protection, it would be appropriate to leave the matter for expert determination so that a robust regime for the protection of data is put into place.We expect that the Union government shall follow up on its decision by taking all necessary and proper steps,“ it said.
SC: non-state actors should be regulated to protect citizens’ rights
Noting that technological development had enabled social networking sites and web service provider companies to invade privacy of individuals by collecting and processing their data, the SC said non-state actors needed to be regulated to protect rights of citizens in the digital age and they should not be allowed to exercise control over people like “big brother“.
The SC said the capacity of online firms to invade homes and privacy of their users stood enhanced and asked the Centre to step in.
“We are in an information age. The information explosion has manifold advantages but also some disadvantages.The access to information, which an individual may not want to give, needs protection of privacy ,“ Justice Sanjay Kishan Kaul said in his separate judgment. “Digital footprints can be analysed computationally to reveal patterns, trends, and associations. This is the age of big data... A large number of people would like to keep such search history pri vate, but it rarely remains private, and is collected, sold and analysed for purposes such as targeted advertising.“
Emphasising the need to regulate firms, Kaul said data was generated not just by active sharing of information but also passively , with every click on the `world wide web'.He said: “Uber knows our whereabouts. Facebook... knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to...“
He added: “George Orwell created a fictional state in `Nineteen Eighty-Four'. Today , it can be a reality . The technological development today can enable not only the state but also big corporations and private entities to be the big brother.“
Supreme Court’s judgements
1954 M P Sharma; 1962; Kharak Singh: not an FR
`1975 Govind Verdict Blindly Followed By Petitioners' The Supreme Court on Thursday stared at a legal vacuum as Maharashtra government, through senior advocate C A Sundaram, demonstrated that the 40-yearold judicially laid down foundation for privacy as a fundamental right was a misnomer. Despite two categorical judgments -one by an eightjudge bench in 1954 (M P Sharma case) and another by a sixjudge bench in 1962 (Kharak Singh case) -declaring that privacy was not a fundamental right, a three-judge bench verdict in 1975 in `Govind vs Madhya Pradesh' was widely believed to have ruled that right to privacy was a fundamental right and this assumption was blindly followed by SC benches over the last 40 years.
A nine-judge bench headed by Chief Justice J S Khehar has undertaken the task of determining the constitutional status of right to privacy , mainly to overcome the hurdle posed by the eight-judge and sixjudge benches.
Petitioners who had challenged Aadhaar on the ground that it violated right to privacy had relied on smaller bench judgments in the last 40 years to caution the apex court against changing what they called the four-decade-long judicial recognition given to right to privacy as a fundamental right. When Sundaram attempted to substantiate his argument that privacy was not a fundamental right, he faced a volley of questions from the bench, also comprising Justices J Chelameswar, S A Bobde, R K Agrawal, R F Nariman, A M Sapre, D Y Chandrachud, S K Kaul and S A Nazeer.
In reply, Sundaram attacked the fountainhead of right to privacy -the 1975 judgment which held sway for the last four decades.
Sundaram and advocate Rohini Musa read out several paragraphs from the 1975 judgment to point out that the three-judge bench had caveated the verdict with “if privacy was assumed to be a fundamental right“. He said there was no logic nor analysis to arrive even at the assumption that privacy formed part of the bouquet of fundamental rights guaranteed to every citizen by the Constitution. “Every subsequent judgment blindly followed the Govind verdict without reason or explanation as to why privacy is a fundamental right,“ he said.
As the facts came out, a sen se of disbelief swept the packed CJI's courtroom, including petitioners who had relied heavily on the Govind verdict. The discovery briefly lulled the bench's instinctive approach to question any counsel arguing against privacy's prime importance in the sphere of fundamental rights.
The bench drew Sundaram's attention to present day reality, when rapid technological advance is making individual privacy increasingly vulnerable. “Do we have a robust data protection regime to protect and secure personal information?“ it asked, indicating its willingness to look at privacy afresh without being burdened by past rulings.
“If we accept privacy as a constitutional right, it will have to be part of personal liberty and right to life guaranteed under Article 21 of the Constitution,“ it said.
Sundaram responded by reading from Constituent Assembly debates and said the framers of the Constitution had considered a proposal to make right to privacy a standalone fundamental right but discarded it after elaborate debate.
1975 Govind vs MP (is an FR); 1976: ADM Jabalpur
Privacy fundamental right, SC had ruled before Emergency|Jul 28 2017 : The Times of India (Delhi)
A nine-judge Supreme Court bench headed by Chief Justice J S Khehar was pleasantly surprised to find that the SC had delivered a verdict, believed for the last 40 years to be the foundation of privacy as fundamental right, in the year Emergency was proclaimed. The nine-judge bench wanted to know the date of the judgment. When senior advocate C A Sundaram said `Govind vs Madhya Pradesh' judgment, erroneously believed to be the first one to rule privacy as a fundamental right, was delivered on March 18, 1975, the bench broke into a smile.
For, Emergency was declared three months later on June 25, 1975. Justice J Chelameswar said he had pointed this out, as head of a threejudge bench, during the hearing on petitions challenging Aadhaar.
The surprise was understandable as the Emergency period, from 1975 to 1977, saw brutal abuse of fundamental rights of citizens and arrest and incarceration of political leaders without remedy . When the aggrieved moved high courts, some of them gave relief under the writ of habeas corpus.
Later, in 1976, the SC, in ADM Jabalpur case, succumbed to the powers that be and gave a blot of a ruling that all rights, including right to life, remained suspended during Emergency . It virtually accepted then attorney general Niren De's constitutionally flawed argument that during Emergency , even if a triggerhappy policeman shot a citizen, there was no constitutional remedy available to the victim's kin.
Not a fundamental right; not an absolute entitlement: SC, 2017
The Supreme Court on Wednesday expressed strong reservations about declaring right to privacy a fundamental right, and said privacy could never be an absolute entitlement with the state having no power to restrict it. “You all are arguing as if right to privacy should be declared as an absolute right.What should be its width and contour? What should be the reasonable restrictions attached to it? Right to privacy cannot be so absolute and overar ching that the state is prohibited from legislating restrictions on it,“ a nine-judge bench told petitioners who argued for privacy to be treated as fundamental right.
The remarks came on the opening day of the hearing by the CJI J S Khehar-led bench to settle the question of whether right to privacy , which is not guaranteed under the Constitution, can be included among the fundamental rights. The judicial exploraition of whether the right to privacy can be a fundamental right saw a nine-judge SC bench directing a whole set of searching questions at the lawyers representing petitioners. Senior advocate Gopal Subramanium said privacy was embedded in all forms of liberty , which stood at the core of an individual's fundamental rights. He drew support from former attorney general Soli J Sorabjee, who said even though right to privacy did not find mention in the Constitution, it continued to be an “inalienable right“ inherent in every human being. “Right to privacy can be deduced from other fundamental rights as was done by the SC while terming freedom of press as part and parcel of right to freedom of speech and expression despite freedom of press not finding mention in the Constitution,“ Sorabjee said.
Questioning counsel's attempt to link privacy to liberty , the bench said, “Every element of liberty is not privacy . Like right to dissent is part of liberty but it is not right to privacy . If we declare right to privacy as a fundamental right, will it permit the government to enact a law prohibiting social media from making personal details of its users public? So, what will be the obligations of a state in such a situation?“ The enormity of crystallising a concept which has remained amorphous and can mean different things to different people became immediately obvious, putting paid to the CJI's ambitious objective of wrapping up the hearing within a day.
The bench comprising CJI Khehar and Justices J Chelameswar, S A Bobde, R KAgrawal, R F Nariman, A M Sapre, D Y Chandrachud, Sanjay K Kaul and S Abdul Nazeer will continue the hearing on Wednesday as the Centre is yet to put forward its arguments.
Chelameswar, Bobde, Nariman and Chandrachud took the lead in outlining the bench's concerns and fired a volley of questions. “There is an amorphous right called right to privacy . If we can't define what is right to privacy and what are its limitations, can we just leave it with a declaration that it is a fundamental right? We do not know what proportions social media will attain in the next five years and the issues of privacy it would throw up. We can understand privacy in the context of cohabitation with wife, sexual orientation but can right of privacy be so broad that parents can decide whether or not to send their children to school? Should we attempt giving a broad definition to it?“
SC: Tough to define `privacy' in net age
Just the act of operating an iPhone or iPad which uses fingerprints to open the device and allows the operator to store the impression and such actions, along with sharing of personal data by people on social network sites, makes defining breach of privacy a challenging task, the Supreme Court observed on Friday . With India overtaking the US in the number of internet and mobile phone users, petitioners on Thursday prodded the Supreme Court to examine right to privacy in the digital world where users' data is shared without regulation.
Senior advocate Sajan Po ovayya made an appealing presentation on the dangers in the web world on breach of privacy of individuals and their profiling based on habits, credit card purchases and social network messages. GPS-enabled smart phones could record each and every movement of individuals and use this data to find out places frequented by the individual, senior advocate Sajan Poovayya said and asked: “Would this not amount to breach of privacy?“ He said US has 22 crore internet users and 32 crore mobile phone users. In contrast, India has 35 crore internet users and 118 crore mobile phone users. “Digital reputation is as important as physical reputation,“ he said.
Justice D Y Chandrachud, part of the nine-judge bench headed by CJI J S Khehar, said: “Unlimited volume of data is shared every minute and these must be getting analysed. A possible way out in this vastness for protection of privacy could be that the government must specify the purpose for collection of personal details and ensure that it was used for that specified purpose only .“
“But, look at the other possibility. One operating an iPhone or an iPad uses fingerprint to open the device and thereby assigning his fingerprint to the private operator. A vast majority of persons using social networking sites are unconcerned about the purpose for which their personal data is taken, analysed and used commercially . How does one draw a line between sharing personal data voluntarily and breach of privacy ,“ he asked.
When Poovayya persisted for expansion of the scrutiny to factor in the rapidly expanding web world and possible misuse of personal details of users while defining right to privacy , Justice J Chelameswar said: “For the last 70 years, we (the SC) have been looking for the contours of freedom of speech, which is ever so expanding. So, it will be extremely difficult to take into consideration the immeasurable possibilities that the digital world holds for future... We can only consider what is happening right now.“
Poovayya said in the absence of a declaration from the SC to the effect that right to privacy is fundamental to Indians, the government collecting biometrics of every citizen would analyse and exploit it for decades. Justice Chandrachud said: “If the government collates crime data to profile a community as criminal, then it is surely violation of right to privacy . But, if the government collates data to profile areas with poverty prevalence to focus availability of food grains, could it be termed violation of right to privacy?“ Arguments would continue on Tuesday .
SC: Economic rights can't undermine basic rights
The Supreme Court on Tuesday continued to subject the debate on constitutional status for the right to privacy to close scrutiny , saying that economic rights of citizens and provision for food and other essential items could never be a ground to undermine basic fundamental rights. This observation came when senior advocate C A Sundaram, appearing for the Maharashtra government, reiterated the central government's stand that right to privacy would always take a back seat when it came to Aadhaar, which enabled the government to secure right to food, a more important right for millions of poor living below the poverty line. “What is better-two square meals or right to privacy ,“ he asked the ninejudge SC bench. Justice D Y Chandrachud, part of a the bench headed by Chief Justice J S Khehar, asked: “Does it mean the cherished constitutional rights are subservient to certain economic developments? Can two square meals be promised in return for barring people from protesting, forming association or giving up other fundamental rights? This can never be. We must guard against this tendency.“
Justice J Chelameswar said: “It is a very cruel choice one can give to citizens --two square meals or right to privacy.“ Justice R F Nariman said: “In the era when personal liberty and fundamental rights are being given a wider meaning, how can you argue for contracting the width of fundamental rights?“ Sundaram clarified that he was not against right to privacy as a statutory right. “Privacy is, in fact, protected by several statutes in several forms, be it Indian Post Office Act, Aadhaar Act, Income Tax Act or others.I am all for statutory protection to privacy. But, giving it a homogenous shape as right to privacy and introducing as a standalone fundamental right would not be proper,“ he said.
He said it was one thing for the SC to interpret an existing fundamental right to rule that right to privacy was part of it, but quite another to rule it as a standalone fundamental right. “The SC must remember that interpretational route to specify a right is far apart from introducing right to privacy in the Constitution despite the Constitution-makers specifically considering, debating and then rejecting it.“
SC’s 3-tier right to privacy: Intimate, private, public
The Supreme Court on Wednesday outlined a three-tier, graded approach to the question whether privacy is a fundamental right by examining the issue through its intimate, private and public aspects even as it reserved its verdict in the case. Prior to completion of the two-week-long hearing that attracted arguments for and against conferring fundamental right status to privacy but which saw all parties ac cepting its intrinsic importance for an individual, a nine-judge bench headed by Chief Justice J S Khehar said privacy could be configured into three zones. Justice D Y Chandrachud set out the tentative thought process and drew support from Justice R F Nariman. Justice Chandrachud said, “The first zone could be the most intimate zone of privacy concerning marriage, sexuality , relations with family and the law should frown upon any intrusion. The state could still intrude into this intimate zone in extraordinary circumstances provided it met stringent norms.
“The second zone would be the private zone, which involved parting of personal data by use of credit card, social networking platforms, income tax declarations. In this sphere, sharing of personal data by an individual will be used only for the purpose for which it is shared by an individual.
“The third is the public zone where privacy protection requires minimal regulation.Here, the personal data shared will not mean the right to privacy is surrendered. The individual will retain his privacy to body and mind.“ The formulation suggests right to privacy may not be unfettered. The bench, also comprising Justices J Chelameswar, S A Bobde, R K Agrawal, A M Sapre, Sanjay Kishan Kaul and S Abdul Nazeer, realised the difficulty in a straitjacket interpretation of constitutional status of right to privacy , it being linked to liberty which has visible footprints on several fundamental rights.
The fledgling service sector, which is growing at a faster pace than the industrial sector, provided food for thought. Justice Chandrachud said, “We are dealing with an issue that has an impact on what constituted India as a powerhouse for growth of service sector. The analysis of choices and personal preferences of 1.4 billion and the analysis of this generates demand in the service sector. In defining the right to privacy , we must keep in mind this critical sector which depends on personal data of Indians using a particular service.“
2018, ‘Core privacy’ behind Hadiya ruling: SC
Coming out with a detailed judgment explaining why it upheld Hadiya’s marriage to Shafin Jahan a month after the order was pronounced, the Supreme Court on Monday said choice of partner lies within an individual’s zone of core privacy, which is inviolable, independent of faith and cannot be dictated by the government or anyone.
The court — which had rejected allegations that Hadiya had been brainwashed or was a victim of love jihad — said the right to marry a person of her/his choice is integral to right to life guaranteed under Article 21 of the Constitution. The SC overturned a high court ruling annulling the marriage.
“This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness,” the court said.
“The Constitution exists for believers well as agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and food, of ideas and ideologies, of love and partnership are within the central aspect of identity... It is parties to a marriage who decide whether they continue with the relationship or not. Society has no role to play in determining our choice of partners,” it said.
Interference by the state in such matters has a serious chilling effect on the exercise of freedoms and it could dissuade others from exercising their choice of life partner, said a bench of CJI Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud.
Justice Chandrachud said: “Public spectacles involving state power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.”
The bench said the Kerala high court had travelled into the impermissible zone of jurisdiction by annulling the marriage between Hadiya and Jahan while entertaining a habeas corpus petition filed by her father. However, the court permitted the NIA to continue with its investigation into any criminality behind the concept of ‘love jihad’.
While CJI and Justice Khanwilkar confined themselves to testing the legality of the Kerala HC order, Justice Chandrachud broadened the analysis of marriage, its correlation with personal choice and its place in the prized fundamental rights enjoyed by each individual.
High court judgements
Call data records for contact tracing
August 22, 2020: The Times of India
The Kerala high court disposed of a PIL questioning the collection of call data records (CDR) of Covid-19 patients by the state police for contact tracing, but made it clear that the state government should ensure only the tower location details are used and confidentiality is strictly maintained.
After considering opposition leader Ramesh Chennithala’s PIL challenging the DGP's August 11 circular to senior officers to go ahead with the proposal to collect CDRs, the division bench of chief justice S Manikumar and justice Shaji P Chaly accepted police’s undertaking that the data would be used only for ascertaining the tower locations of Covid patients.
On the petitioner’s plea to implead telecom service providers in the case, the court said the retrieval of CDRs should be seen and considered in the light of the daily spike in Covid-19 cases and the peculiar circumstances the state has found itself in because of that.
The government had informed the court through a statement filed on behalf of the DGP that the police were only finding out the tower location of Covid patients and those suspected of having contracted the virus. Tower details are essential for creating route maps for effective contact tracing, the government contended.
‘CDRs being accessed in strict confidentiality’
The statement mentioned that the police were getting CDRs from telecom service providers in “comma separated value (CSV) format” and that it was not possible to obtain tower details alone.
The government also said in the affidavit that CDRs were being accessed in strict confidentiality, used for the limited purpose of identifying places an individual has visited and thereafter destroyed. No third party has access to the CDRs, it added.
Posthumous privacy
HC: Posthumous privacy right is not permissible
The Delhi high court refused [2021 June ] to block several movies purportedly based on the life of late actor Sushant Singh Rajput, including the film “Nyay: The Justice” a day before its release. “Posthumous privacy right is not permissible,” the HC said.
Govt's stand on privacy
Has varied over the years
Advocating fundamental right status to `privacy', petitioners on Thursday put the Centre on the back foot by informing the Supreme Court that the government cannot take a contradictory stand after attaching cardinal importance to individual privacy in the Right to Information Act, 2005.
The Centre had taken a stand that privacy was a common law right and not a fundamental right. It had couched its stand on two judgements of the SC one in 1954 by a eightjudge bench and second in 1962 by a six-judge bench declaring that right to privacy is not a fundamental right.
Senior advocate Sajan Poovayya said in Section 8(j) of the RTI Act, the government had been categorical in expressing its opinion about the paramount importance of individual privacy and had made this a ground to deny personal information to RTI applicants.
Section 8(j) says RTI applications would be rejected if “information which relates to personal information the disclosure of which has no rela tionship 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“.
Poovaya also said the Indian Post Office Act of 1898 too respected privacy by providing for elaborate procedure for opening the letters written by one individual to another in certain situations. He and senior advocate Anand Grover pointed out that India is a signatory to the Universal Declaration of Human Rights which also talked of right to privacy of individuals. “Once the country is signatory to this as well as other international instruments and treati es recognising right to privacy, it is the duty of the government of that country to incorporate it into the domestic laws.“ they said.
At this point, a nine-judge bench headed by CJI J S Khehar asked the counsel, “What happened to the Right to Privacy Bill, 2011?“ The question came even as the bench conceded that right to privacy was a vexed issue as it is difficult to discern where and when an individual can claim privacy over personal data.
On August 13, 2015, minister of personnel Jitendra Singh had informed the Rajya Sabha that the Centre was in the process of drafting a legislation that will guarantee protection to individuals against breach of their privacy through unlawful means.
The first draft of the bill was released in 2011 and in 2014 extensive modifications were incorporated into it to extend right to privacy to citizens and all residents of India.
It proposes to make “right to privacy a part of right to life guaranteed to a person under Article 21“ and makes it an offence if any personal data is released without prior consent of the individual.
Government and other official surveillance
2018: Centre is collecting, using personal info illegally, says govt committee
At a time when discussions on data privacy have put the Centre in a spot in the Supreme Court, the Committee of Experts (CoE) under Justice (retd) BN Srikrishna has said the government is “collecting and using personal data in certain contexts, like intelligence gathering and counter-terrorism, without the backing of any law”.
“The public and private sector are collecting and using personal data on an unprecedented scale. While data can be put to beneficial use, unregulated and arbitrary use of data, especially personal data, raise concerns relating to centralisation of databases, profiling of individuals, increased surveillance and a consequent erosion of individual autonomy,” the paper notes.
The committee, which released the paper in November 2017 and is currently in the process of conducting consultations, has also considered the SC judgment on privacy, whose lead petitioner, Justice (retd) KS Puttaswamy, told TOI that collection and use of data without laws can lead to erosion of privacy as it leaves the citizen with no forum to challenge.
While stating that processing of information in the interest of national security, or the security of the state, is permissible as long as the government is able to demonstrate that it is necessary to achieve the purpose, the committee says the challenge lies in ensuring the derogations to an individual’s right to privacy must be permissible only if it is necessary for these objectives.
Speaking about prior legislation for data protection, the paper points to the Information Technology (IT) Act of 2000 and notes that there are many discrepancies despite the introduction of Information Technology (Reasonable Security Practices and Sensitive Personal Data or Information) Rules, 2011, known as SPDI Rules.
“SPDI Rules apply only to corporate entities and leave government and government bodies outside its ambit; the rules are restricted to ‘sensitive personal data’, which includes attributes like sexual orientation, medical records and history, biometric information et al and not the larger category of personal data,” the paper notes.
The committee said that the absence of effective enforcement machinery raises concerns about the implementation of the SPDI Rules, making a comprehensive law to protect personal data.
Arguing that certain exemptions — as in the UK and European Union’s General Data Protection Regulation (GDPR) — must be provided to the government when it comes to using data for national security, it bats for proper regulation. “The law may provide exemptions for Information collected for investigation and prosecution; Maintenance of national security and public order. But exemptions must be defined to ensure that data processing is done only for the stated purpose. It must be demonstrable that the data was necessary for the purpose. In order to ensure that the exemptions are reasonable and not granted arbitrarily, an effective review mechanism must be devised,” the paper notes.
The public and private sector are collecting and using personal data on an unprecedented scale. While data can be put to beneficial use, unregulated and arbitrary use of data, especially personal data, raise concerns relating to centralisation of databases... and a consequent erosion of individual autonomy
HC: CCTVs do not violate school children’s privacy
HC: CCTV cams won’t kill kids’ privacy, September 14, 2018: The Times of India
In a boost to AAP government’s proposal to install CCTVs inside school classrooms, Delhi high court on Thursday rubbished claims that children’s right to privacy would be affected by such a decision.
A bench of Chief Justice Rajendra Menon and Justice V K Rao observed there is nothing wrong with cameras inside classrooms, adding that there is “no privacy issue” in classrooms as nothing private is being done there.
The concerns of privacy have to be balanced with safety of the children, the court underlined, adding that often parents accuse teachers of not teaching and seen from that perspective, cameras in classrooms will show the correct picture.
HC’s remarks came while hearing a PIL against Delhi government's proposal to install over 1.4 lakh CCTV cameras inside classrooms of its schools. Petitioner Daniel George had opposed the proposal, citing privacy concerns, and urged the bench to issue an interim direction putting on hold the procurement of the cameras.
He argued that it was not healthy to have cameras inside classrooms where children, including girls, often discuss personal things amongst themselves.
But the bench rejected the plea for interim relief, saying there was nothing private happening in classrooms and even the Supreme Court was proposing to have CCTV cameras record court proceedings. “Every good thing that happens has to be challenged by someone,” the court said, after Delhi government, represented by additional standing counsel Sanjoy Ghose, told the bench that feed from the cameras in any case would be password protected and accessible to parents and not any strangers.
The government also said that a standard operating procedure (SOP) for using the cameras will be formulated and the petitioner can give his suggestions as well, to allay his fears that installing cameras in absence of any regulatory mechanism on access to its footage could lead to incidents of stalking and molestation.
The petitioner had also sought that a feasibility test be held amongst the target population of students and teachers to understand the issues they face when it comes to surveillance.
The plea further states that even the South Delhi Municipal Corporation proposes to install 4,348 CCTV cameras in 344 schools run by it and sought quashing of the proposals of both the Delhi government and SDMC as well as framing of guidelines for effective regulation on access to the CCTV footage.
Right to be forgotten, Right to be left alone
2021: Delhi HC
Abhinav Garg , May 26, 2021: The Times of India
In an important order on the ‘Right to be forgotten’ and ‘Right to be left alone’, Delhi high court has ordered removal of one of its own verdicts from search engine Google.
The judgment was related to acquittal given in a drug case involving a US citizen of Indian origin. Justice Prathiba M Singh highlighted that the ‘Right to privacy’ includes ‘Right to be forgotten’ and ‘Right to be left alone’ while asking a website — Indian Kanoon — to remove the high court verdict link given in an NDPS case so that the same can’t be accessed by Google and Yahoo search engines. “Owing to the irreparable prejudice, which may be caused to him in his social life and career prospects, in spite of the petitioner having ultimately been acquitted in the said case via the said judgment, prima facie this court is of the opinion that the petitioner is entitled to some interim protection, while the legal issues are pending adjudication by this court,” the court noted in an interim order.
Since the court has protected the privacy of the petitioner, TOI is not naming him. In his plea the man told the court that he is of Indian origin but an American citizen by birth who was slapped with a case under the NDPS Act when he visited India in 2009.
While the trial court acquitted him in 2011, the HC upheld his innocence two years later. He told the high court that on his return to the US he decided to pursue law at an university, but realised he faces a disadvantage due to the fact that the Delhi HC judgment is available on a Google search to any potential employer. Despite a good academic record, he is unable to get any employment due to this.
Noting that the right to privacy includes ‘right to be forgotten’, the judge barred search engines from accessing the judgment.
Redaction of person’s name from judgements on acquittal
K Kaushik, July 17, 2021: The Times of India
Invoking an individual’s right to privacy and the right to be forgotten, the Madras HC has observed that a person’s name should be redacted from judgments if s/he is acquitted in a criminal case as a Google search can make or mar a person’s character, reports K Kaushik. The court was hearing the plea of a man who was convicted of rape and cheating, but subsequently acquitted of all charges.
HC: Criminal justice system not at level where accused’s name can be redacted
K Kaushik, August 4, 2021: The Times of India
Redact= censor or obscure (part of a text) for legal or security purposes
Dismissing a plea moved by a man seeking to redact his name from a judgment of the Madras high court that acquitted him in a criminal case, the HC observed that “this court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations”.
“This court must take judicial notice of the fact that the criminal justice system that is prevalent in this country is far from satisfactory. In various cases involving heinous crimes, this court helplessly passes orders and judgments of acquittal due to slipshod investigation, dishonest witnesses and lack of an effective witness protection system,” observed Justice N Anand Venkatesh.
The judge observed that though this court came to a prima facie conclusion that an accused person is entitled to have his name redacted from the judgments or orders and more particularly the ones that are available in the public domain and which are accessible through search engines. However, on a deeper review of the issue, this court has taken cognisance of the fact that the same is not as simple and straight as it sounded. This court felt that there may be ramifications if such a generalised order is passed and directions are issued.
The judge observed that during the course of deliberation, the attention of the court was drawn to various foreign judgments and also the relevant regulations and enactments of those countries which specifically provides for expunction, expungement, redaction or destruction of criminal records.
“No such rule or regulation exists in India for the present. In the absence of any statutory backing, this court cannot undertake the exercise of issuing directions when no judicially manageable standards exist in the first place. There must be a proper policy formulated in this regard by means of specific rules. In other words, some basic criteria or parameters must be fixed, failing which, such an exercise will lead to utter confusion,” observed the judge.
The judge observed that it will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. “If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system,” observed the judge.
