Yesterday, a 9 judge constitution bench of the Supreme Court of India was set up to hear arguments on whether there is a fundamental right to privacy under the Indian Constitution, following from an order of a 5 judge bench on the day before. Arguments were advanced on behalf of some of the petitioners yesterday, and the petitioners counsels continued arguments before the Court today. Our updates on the proceedings before the court on Tuesday and Wednesday are available here and here. A background to these hearings, and the larger Aadhaar case can be found here.
[Our update on today’s hearings have been divided into two posts, this post details the arguments made by senior counsels representing petitioners S. Raju, Aruna Roy and Nikhil Dey during the first half of the day. The second post is available here and details arguments made by senior counsels representing the remaining petitioners, largely during the second half of the day.]
Today’s proceedings began with senior counsel arguing on behalf of S. Raju concluding his submissions. Responding to the question raise in the court’s reference to the 9 judge bench, the counsel stated once again that the ratio in the judgments in Kharak Singh v. State of Punjab (Kharak Singh) and M.P. Sharma v. Satish Chandra (M P Sharma) do not provide that there is no fundamental right to privacy under the Indian Constitution. The bench raised the question of the right to privacy in relation to private agencies / individuals, highlighting that enforcing a right to privacy against a private person would possibly act against other rights of such private person.
The senior counsel referred to academic writings that categorise privacy into 3 broad areas:
- physical / spatial privacy: which deals with the protection against tangible / intangible invasion of private space
- informational privacy: dealing with an individual’s control over dissemination of their personal information
- decisional privacy: dealing with protection of an individual’s autonomy over fundamental personal decisions.
He highlighted that the nature of privacy protections against third parties that is being discussed by the Court i.e. in the context of collection and use of data in the digital world, would fall within the category of informational privacy. The counsel further submitted that we have already seen examples of remedies by way of damages discussed in the case of enforcement of a right to privacy against a non-state actor in R. Rajagopal vs State Of T.N (Rajagopal). He further stated, that the remedies would of course depend upon the case, and that there is no simple answer to this question. He emphasised that however, in the case of a violation of the right by the State, remedies must be available under Articles 226 and 32 of the Constitution.
The bench pointed out that there is a wider regulatory issue here – if there is a violation of a constitutional right by a state actor, Article 13 of the Constitution (which provides that any law that contravenes the Part III of the Constitution conferring fundamental rights will be void) would be applicable. However, in a situation where Article 13 does not apply, the question is whether the right to privacy would then be a horizontal right, requiring the state to ensure a regulatory environment in which the right is allowed to flourish.
The senior counsel highlighted that in the context of privacy, the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 are an example of the state providing such regulatory environment. He also argued that not every horizontal right requires a regulatory framework, and that such frameworks could be put in place depending upon the requirements of public interest.
The bench directed the conversation back to the question of remedies, pointing out that in the context of privacy and data protection, often the only effective remedy is an injunction, and that damages may not be an efficient remedy. The counsel agreed, stating that different forms of remedies maybe available depending upon the facet of privacy in question and the nature of violation of the right. He pointed out that in Rajagopal there was a mixture of horizontal as well as vertical application of the right to privacy. In Mr. X v. Hospital Z, a completely different approach was adopted – by approaching a consumer forum / court for the protection of the right to privacy.
The counsel for petitioners Aruna Roy and Nikhil Dey argued next. He began by stating that in addition to the arguments already made by other counsels, the statements on privacy in Kharak Singh and M P Sharma should not be construed to be of importance, since the issue of privacy as such was never raised during arguments in these cases. The statements on privacy were merely observations made by the judges that did not have bearing on the decisions in either case. Noting that Kharak Singh has been overruled by Maneka Gandhi v. Union of India as argued by the other petitioners, he submitted that what remained was for the specific portions of M P Sharma that have been upheld in Selvi & Ors vs State Of Karnataka & Anr (Selvi) to be overruled.
The counsel then proceeded to argue that the Constitution of India is a living document, and that this implies that the rights under the constitution must develop with time. The counsel pointed out that while our Constitution, and the Indian legal system was developed on the basis of English common law, the right to privacy was originally recognised under American jurisprudence and not English common law. English common law originally provided for tortious remedies for specific acts that may be construed as an invasion of privacy, but there was no overarching tort on the invasion of privacy as such.
The counsel then observed that on the other hand, India has several obligations under international law to recognise and protect its citizens’ right to privacy. He pointed out that the right to privacy is recognised as a basic human right under the Universal Declaration of Human Rights adopted by the United Nation General Assembly which India is a member of. India has also specifically ratified the International Covenant on Civil and Political Rights (ICCPR) which also provides for a right to privacy.
He referred to the judgment in I R. Coelho v. State of Tamil Nadu which states that “constitutional provisions have to be construed having regard to the march of time and the development of law”. The counsel argued that constitutional rights must be developed in accordance with both domestic and international developments and obligations of the state. He then discussed the fact that several judgments of the Supreme Court have also stated that the fundamental rights must be interpreted expansively, construed in a liberal manner, and not diminished.
Going back to the argument on India’s international obligations, the counsel noted that ratification of the ICCPR cannot be an empty action, and that the obligations under international instruments must be applied under domestic law. Under the ICCPR, member states have an obligation to “respect”, i.e not violate the right; “protect” i.e protect against interference by private parties and “fulfill”, i.e take steps to realise and protect the right. The counsel also highlighted the parameters accepted under international law for any legislation that derogates from human rights i.e. legality, necessity and proportionality.
The counsel then referred to the reports of the United Nations Special Rapporteur on Privacy, which raise concerns regarding mass surveillance efforts by various governments across the world. He also pointed out that the United Nations General Assembly has voiced concerns on the issue of privacy as well, and adopted resolutions to promote the protection of privacy.
He also referred to the Indian Protection of Human Rights Act, 1993, and several case law, including Bachan Singh vs State Of Punjab, Francis Coralie Mullin vs The Administrator, Union Territory of Delhi and the landmark judgments in Vishaka & Ors vs State Of Rajasthan & Ors and NALSA v. Union of India (NALSA) to note the established position under Indian law that international law and India’s international obligations are to be imported into Indian law, either by way of legislation or directly (in the absence of legislation). On the basis of these arguments, the counsel submitted that the provisions of the ICCPR should be read into the fundamental rights under the Indian constitution, and the right to privacy recognised as a constitutional right.
Moving to the issue of defining the right to privacy, the counsel referred to the Supreme Court’s judgment in Gobind vs State Of Madhya Pradesh And Anr, noting that the judgment describes the difficulties in defining the scope of this right, and provides some indicators. Justice Chandrachud observed at this stage that 40 years later, the reading of privacy under this judgment seemed narrow and dated. He mentioned that in today’s digital age, questions of identity and the ability to maintain individual anonymity are of importance. The counsel agreed, noting that this is also of specific importance in some communities such as the transgender community. The counsel and Justice Chandrachud discussed the different facets of privacy in this context, and the need to identify how much information an individual could be compelled to provide the state, and restrictions on the manner in which this information could be used. Justice Chandrachud provided an example of the state maintaining a database of all individuals convicted of a crime, and then using the meta data in this database to profile potential criminals and communities / individuals that are pre-disposed to commit criminal activities. He highlighted that maintaining the database may be acceptable, especially if it was used to provide citizens with socio-economic benefits, but the use of the database to profile individuals without any evidence would be a transgression.
The senior counsel highlighted that as long as a right to privacy exists, the tests for violation of this right could be determined on a case to case basis. The Chief Justice proposed that perhaps a good test would be whether an individual is asked to provide information that bothers / affects their dignity. The senior counsel agreed, submitting that the preamble could be read to say that dignity underlies every right granted under the constitution. He also argued to privacy is essential to dignity, and is the bulwark of the right to personal liberty, citing Suchita Srivastava & Anr vs Chandigarh Administration, Selvi, and NALSA. Noting that privacy depends upon various factors and cannot be categorised easily, the counsel concluded his arguments submitting that (i) the failure to protect privacy as a constitutional right violates dignity, and is therefore a violation of the fundamental rights, and (ii) that privacy is pervasive, like dignity, and is applicable across fundamental rights. He submitted that the right to privacy maybe located in Articles 14, 19 and 21 as previously argued, but that it could not be restricted to these fundamental rights alone.