by sflc_admin    |    August 2, 2017

On day 6 of the hearing to decide the fate of right to privacy as a fundamental right in India, Supreme Court’s nine-judge bench in the matter of K.S Puttaswamy v. Union of Indiaheard concluding arguments from the State (before lunch) and the Petitioners (post lunch). Our notes on the hearings from the first five days can be accessed here: day 1, day 2, day 3, day 4 and day 5.

Senior Advocate Rakesh Dwivedi, appearing on behalf of the State of Gujarat, resumed his arguments from day 5. He submitted that privacy is already a part of other fundamental rights, including 19(1)(a), so there is no need for it to be put under Article 21. J. Khehar remarked “Let’s confine ourselves only to Article 21 that contains procedure established by law.” To this, Mr. Dwivedi stated that if privacy aspects are put into other rights, then privacy has to stand the test of that right. J. Kheher said that right to privacy and its justification are separate aspects. Mr. Dwivedi revealed that it is okay as long as privacy does not collectively fall into more than one fundamental right. According to him, it has to fall under one right at a time and thereafter it will have to stand the test of that right. Mr. Dwivedi discussed technological intrusion into one’s home, instead of physical intrusion. He followed that by discussing Justice Scalia’s opinion in the Kyllo case that talked about reasonable expectation of privacy. J. Nariman argued that this test cannot be imported to Article 21.

Further, J. Chandrachud contemplated three zones of privacy: (1) Intimate zone like marriage, sexual orientation, reproduction etc.; (2) Private zone where a person can choose to not share his/her privacy with others, e.g. giving data to a bank and the bank using it only for the purpose for which it is given; and (3) Public zone, where privacy protection will be minimal, but there will still be privacy of mind and body. J. Chandrachud said that India is an economic powerhouse because of its 1.4 billion people. While protecting privacy, we must keep in mind that the spread of knowledge and innovation is not stifled. He explained that when one moves from extremely private to public zone, the level of protection of privacy also gets modulated, and the extent of state regulation becomes broader.

Mr. Dwivedi opined that, if the information/data collected is not harmful then it should be collated and analyzed, such as in the case of hospitals collecting data for the purpose of public health. At this point, J. Nariman interjected and said that whether you go from one zone of privacy to the other, the fundamental right to privacy still stands, and it has to be balanced with the public’s right to know. According to Mr. Dwivedi, right to privacy is circumstantial, it cannot be made general. He said that reasonable expectation test (Katz test) should be applied to it, and with respect to sensitive personal information, harm and injury test should be applied. But, he emphasized, if the information is not harmful, then there’s no need for privacy. He read a portion of Govind v. State of MP to stress on the point of compelling state interest and the test of reasonable expectation of privacy. He also cited several United States judgements to support this argument. Mr. Dwivedi pointed out that the reasonable expectation of privacy test is contained in Article 8 of the European Convention also. He made the point that privacy should not be covered under Article 21 because it is difficult to define a general right of privacy, and since privacy is already inherent under other rights.

Mr. Dwivedi continued by saying that “liberty” mentioned in the preamble is very narrow in scope; liberty of thought is limited to Article 19(1)(a) and Article 25. Dignity may contain privacy to some extent, but dignity in the preamble is in the context of fraternity to include dalits. Due process in the American context, he said, brings a lot of things in its ambit, but it was rejected in India. He stated that it was rejected before and after Maneka Gandhi. In his opinion, we should only stick to just, fair and reasonable and not expand it further. J. Nariman disagreed and said that substantive due process has been in Indian law since Bachan Singh‘s case. Mr. Dwivedi mentioned that J. Chandrachud had rejected the due process test in Maneka Gandhi, and that in Bachan Singh J. Sakaria had also confined to just, fair, and reasonable. He highlighted that in the case of Sunil Batra, J. Chandrachud had not agreed with J. Krishna Iyer’s dissenting opinion (he talked about due process). Mr. Dwivedi further argued that substantive due process must be overruled as it was considered and rejected by the framers of the Constitution. Terming privacy a fading concept, he said that there is no privacy with respect to basic identity information. He brought up the fact that even Supreme Court rules require personal information and Aadhaar for the purpose of filing a PIL. He proceeded to make the classic argument that only people who have something to hide need privacy. J. Chandrachud clarified that data held with Supreme Court cannot be used for any other purpose apart from the purpose for which it is collected. He opined that, even though with the advancement of technology the notion of privacy is broken, but the Constitutional notion of Privacy has to still stand.

Mr. Dwivedi contended that that advertisers using individuals data is not a privacy problem; it is a data collection and utilization for commercial use problem. J. Nariman reiterated the limitation purpose and distinguished personal and sensitive data from data put out on Facebook. Mr. Dwivedi concluded by arguing that in the age of technology, data and metadata should be mined for useful purposes.

Advocate Gopal Shankaranarayan, appearing for Centre for Civil Society, argued against the right to privacy. He called privacy too broad and said that it cannot be made a fundamental right. He submitted that Kharak Singh and MP Sharma still stand, and that RC Cooper was decided on the basis of an erroneous assumption to overrule Gopalan. According to him, the consequences of having privacy as a fundamental right will be dangerous. He continued to defend the Gopalan judgement and made a distinction between rights available to citizens and non-citizens. He accepted that all rights flow from each other, but he said that there is ground for distinction as well. As an example, he mentioned that Article 19 is only available to citizens and not all persons. He defended the majority decision in Kharak Singh, and said that Munn vs. Illinois was cited to expand the meaning of life and personal liberty. Mr. Sankarnarayanan emphasized that both Kharak Singh and MP Sharma have been considered to be the genesis of the right to privacy by the courts. He argued that the petitioners had incorrectly interpreted Kharak Singh and MP Sharma.

Further, Mr. Sankarnarayanan asked the bench if they are going to apply privacy standards of foreign countries that have different social norms to India. He gave the example of pre-natal sex determination, which is legal in the United States but prohibited under Indian law. He emphasized that large aspects of privacy are already covered by individual statutes, and therefore there is no need to import privacy under Article 21. Further, he justified the DNA Profiling bill which is currently under consideration by the Parliament, saying that the Criminal Procedure Code allows the same. Lastly, Mr. Sankarnarayanan explained that all the rights mentioned in the Universal Declaration of Human Rights do not have to be imported into domestic law, citing the example of right to property, which is contained in the UDHR as a fundamental right, but not so under Indian law.

Mr. Arghya Sengupta, appearing for the state of Haryana and Telecom Regulatory Authority of India, began his submissions, contending that the doctrine of purpose limitation with respect to data and information is not in tandem with contractual law. His second submission was that privacy is nothing but liberty, ergo there is no need to carve out a separate right for it. Mr. Sengupta cited Planned Parenthood v. Casey, and say that the United States does not per se recognize privacy; the controlling interest is liberty. He also cited Lawrence v. Texas to justify that privacy is not used to test legislations in the United States. Robert Bork and Wesley Hohfeld were also quoted by him to justify the stance that the right to be left alone relates to a person’s personal liberty. Privacy of body and mind is a formal and over broad principle, he said. He concluded his arguments by quoting Israeli legal and political philosopher, Joseph Raz, in response to J. Bobde’s earlier question on the meaning of fundamental right. With this, the State’s submissions came to an end and the petitioners commenced their rejoinder.

Mr. Gopal Subramanium expressed his disappointment in the State’s arguments and submitted that the words of the Constitution cannot be so narrowly interpreted. He praised the dissent of J. Fazal Ali in the case of A.K Gopalan and J. Subbarao’s dissent in Kharak Singh. Mr. Subramanium pointed out that Gopalan’s approach to fundamental rights was followed by the majority in Kharak Singh and the dissenting judgment in Keshavananda Bharati. The deprivation of fundamental rights during the dark period of emergency was also discussed by him. Mr. Subramanium contended that the cases of ADM Jabalpur, Maneka Gandhi and Minerva Mills talked about the inalienability of rights.. He said that the State’s disjunctive notion of life and liberty is wrong, and that liberty and dignity have always been read together. Mr. Subramanium concluded by saying that J. Bhagwati helped in drafting the Constitution of South Africa and the same contains right to privacy in Article 14.

Senior Advocare Kapil Sibal submitted that a person’s privacy is part of their diversity. He distinguished privacy from personal liberty and said that privacy is the golden thread that runs through personal liberty. At this point, Justice Chandrchud asked: “Where does privacy fit in the constitutional discourse? Whether it is a subset of liberty?” To this, Mr. Sibal replied saying that privacy is at the heart of liberty and is enshrined in Articles 19, 21 and 25. He explained that the all pervasive nature of State and technology makes privacy an important fundamental right.

Senior Advocate Shyam Divan argued that privacy is implicit in personal freedom and individual identity. He said that privacy is a bundle of rights, with many aspects of it overlapping. He explained that it broadly includes personal information, personal autonomy, physical space and property. Mr. Divan contended that all aspects of privacy cannot be protected by way of enacting legislations; it must be constitutionally protected.

Senior Advocate Anand Grover contended next that people cannot be asked to give up right to privacy to avail right to food. Mr. Grover pointed out that the United States interpretation of privacy is quite narrow and therefore the court should look at other jurisdictions like Canada and Latin America.

Senior Advocate P.V. Sundaresan, appearing for State of Kerala, stated that an individual owns one’s thoughts and feelings. He argued that if the State someday has the power to map an individual’s thoughts and feelings, then (s)he will have no legal recourse if there is no right to privacy. Mr. Sundaresan mentioned that the fluidity of the right to privacy is no ground to deny its existence. He gave the example of Article 21 being indefinite and open to interpretation.

Senior Advocate Minakshi Arora cited Article 372 of the Constitution and said that Article 21 is not a gift of the Constitution. It is an inalienable right that always existed. “Fundamental rights have no fixed content. They are empty vessels into which each generation pours its wisdom.”, she said. Ms. Arora concluded by saying that the State cannot say: “If you give me your privacy, I will give you welfare benefits.”

Senior Advocate Sajan Poovayya explained the importance of informational self determination in the age of technology. He highlighted that the State itself has acknowledged that there is a right to privacy, but has a semantic problem with the term “right to privacy.”

Senior Advocate Arvind Datar contended that, if privacy is a subset of liberty, then it has to be a fundamental right, since liberty is a fundamental right. He argued that it is wrong to say that privacy is a vague and amorphous concept; one may only say that it is incapable of precise definition, but so are all other fundamental rights. Mr. Datar pointed out that the constituent assembly did not include the right to privacy in the Constitution only in the context of the Fourth Amendment. He concluded that he is appalled that in 2017, the State is arguing that citizens do not have a right to privacy.

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