To start with, the 9-Judge Bench of Supreme Court after hearing both sides reserved its verdict on the question whether privacy is a fundamental right under the Constitution or not. The marathon arguments that begin on lasted for six days. The judgment is likely to be pronounced before August 27, the date when the incumbent CJI JS Khehar demits office.
There is no definite legal definition of privacy. It can be interpreted to mean various things like bodily integrity, protection from state surveillance, personal autonomy, dignity, confidentiality etc. Briefly stated, it has to be determined separately from case to case. It is not explicitly mentioned in Constitution but deemed to be included in Article 21.
Now coming to international arena, Article 12 of the Universal Declaration of Human Rights, 1948 and Article 17 of the Internmational Covenant on Civil and Political Rights (ICCPR), 1966, which India signed And ratified on April 10, 1979 in totality legally protects persons against “arbitrary interference with one’s privacy, family, home, correspondence, honour and reputation”. Also, Article 7 and 8 of the Charter of Fundamental Rights of the European Union, 2012, recognizes the respect for private and family life, home and communications. Article 8 specifically stipulates protection of personal data and its collection for a specified legitimate purpose.
Coming back to main subject, the 9-Judge Bench headed by Chief Justice of India JS Khehar included Justices DY Chandrachud, J Chelameswar, SK Kaul, SA Bobde, RF Nariman, AM Sapre, RK Agarwal and Abdul Nazeer reserved the order after petitioners’ counsels replied persuasively to the cogent arguments by the Centre and some States that privacy must be protected through statutory enactments and there was no need to elevate it to a fundamental right. Centre led by Attorney General KK Venugopal and a battery of senior lawyers appearing for BJP-ruled States who submitted that privacy need not be given a separate status of a fundamental right. Centre claimed that privacy was vague and amorphous and when a right is not defined, it cannot acquire status of a fundamental right.
Be it noted, Venugopal argued that privacy is not a fundamental right and even if so assumed, it is a qualified right which must be subservient to the higher right of citizens to life. Maharashtra, Gujarat, Haryana followed suit by claiming that privacy is a facet of liberty and violation of right to privacy will necessarily be traced to infringement of any of the existing fundamental rights.
Be it also noted, Venugopal also asserted that even if privacy is assumed to be a fundamental right under right to liberty of citizens, it must yield to the right to life of 270 million citizens who will receive the benefit of social welfare schemes with Aadhaar. He said, “A large section of the people would be deprived of their basic needs and rights if the claim of the petitioners to a fundamental right to privacy is accepted…Even otherwise, there can be no claim to a privacy right against identification for the purposes of public welfare and social schemes of the Government, and to plug leakages and corruption in the administration of such schemes.” He also said that, “In a developing country where millions of people are devoid of the basic necessities of life and do not even have shelter, food, clothing or jobs, and are forced to sleep on pavements even in the height of winter, and perhaps, to die no claim to a right to privacy of the nature claimed in this case, a fundamental right would lie. Any such claim…would be based on an approach which is esoteric and elitist, in the light of allegation that Aadhaar would convert India into a totalitarian state.”
To put things in perspective, Venugopal asserted that right to privacy could not be bundled as a single right in a developing country like India where a few persons claiming right to privacy override the fundamental rights of 60-70 million people who did not have access to basic amenities like food and shelter. He said: “We are a poor country. In Kalahandi, a mother is forced to sell her girl child for Rs 50,000 to Rs 60,000 who will eventually be taken to a brothel where her privacy and bodily integrity will be taken away.” Does this confer an unfettered licence on Centre to not grant right to privacy? Can poverty be a ground to deny right to privacy to citizens?
Stretching his argument further, Venugopal contended that, “Under the MNREGA scheme, the government is giving money for the work done by people through Direct Benefit Transfer (DBT) into their bank accounts. The money now goes directly into their bank accounts after being linked to Aadhaar which they never got earlier. Even the World Bank has appreciated the effort and said that this model should be adopted by other countries.” The Bench then rightly said that, “You want to make the DBT reach the beneficiaries. It’s alright as that can be the legitimate interest of the government.” Justice Rohinton Fali Nariman was more direct in saying that, “Don’t forget the little man’s right to privacy. Everything is not Aadhaar-centric. We are going to consider all aspects and give you a comprehensive judgment for conceptual clarity of the nation.”
In this context, it would be pertinent to note that Justice RF Nariman who is a member of the Bench led by CJI JS Khehar rightly posed a question to the Additional Solicitor General Tushar Mehta who opposed privacy being recognized as a fundamental right. Justice RF Nariman asked: “A one whole chapter in the Aadhaar Act deals with privacy interest. Is this not another legitimate recognition of it (privacy) being a fundamental right?” Earlier Justice SA Bobde wondered whether the Aadhaar Act of 2016 itself had any provisions to protect privacy. To this, Venugopal then pointed to Section 28 of the statute dealing with “security and confidentiality of information”. To this, Justice Bobde again shot back asking “So does this mean you do recognize privacy as a fundamental right?” The palpable answer is yes.
Also, I would like to point out here that over the course of the various hearings in this landmark case, many thought provoking questions have been posed by the Supreme Court itself and they are as follows: What are the specific rights that come under the right to privacy? Does the right include family, sexual orientation, gender identity, surveillance, property, data protections, bodily integrity etc? What are the limitations that a state can pose on the right? It still remains to be seen as to what exactly the Supreme Court finally rules on this as the decision has been reserved. But one thing is clear: It is not so easy to answer all these with precision!
Challenging the stand of the Centre and States, senior advocate and former Law Minister Kapil Sibal appearing for Opposition-ruled States of West Bengal, Karnataka, Punjab and Union Territory of Chandigarh said that in this day and age the need for privacy is all the more essential considering the fact how technological advancement can allow State and non-State actors to pervade into private space of individuals. He said that, “Privacy cannot be an absolute right. But it is a Fundamental Right. This court needs to strike a balance. In the light of technological development, the court should take a fresh look on the Right to Privacy and its contours in the modern day.” He was supported by senior advocates Gopal Subramanium, Arvind Datar, Shyam Divan and Anand Grover who urged the Court to lay down privacy to be at the core of the Constitutionally recognized principles of liberty and dignity, and hence a fundamental right. No doubt, they argued exceptionally well to push forward their point.
Truly speaking, the Bench then did ask the petitioners that if privacy essentially was liberty, then why distinguish it as a fundamental right. The Bench understood privacy to fall into three zones – intimate, private and public, and said that Government control would increase from the first to the last zone. Senior counsel Gopal Sankaranarayanan who appeared for the think tank Centre for Civil Society raised the point about apps. He said that, “When we use an app, it asks us whether it can access the contact list, pictures etc and we invariably say yes. Thus, we are waiving our privacy. But if we raise privacy to the status of a fundamental right, it cannot be waived”. A valid point.
It may be recalled here that an eight-Judge Bench comprising the then Chief Justice Mehar Chand Mahajan and Justices B Jagannadhadas, Ghulam Hasan, Natwarlal H Bhagwati, TL Venkatarama Aiyyar, BK Mukherjea, Sundhi Ranjan Das and Vivian Bose in MP Sharma & Others v Satish Chandra, District Magistrate, Delhi & Others [1954 SCR 1077] dated March 15, 1954, it was held that, “A power of search and seizure is, in any system of jurisprudence, an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of the fundamental right to privacy, analogous to the American Fourth Amendment, there is no justification for importing into it, a totally different fundamental right by some process of strained construction.” Privacy was not recognized as a fundamental right.
Similarly in Kharak Singh v The State of UP & Others [1964 1 SCR 332] dated December 18, 1962, the writ petition was adjudicated by a six-Judge Bench comprising the then Chief Justice Bhuvaneshwar P Sinha and Justices N Rajagopala Ayyangar, Syed Jaffer Imam, K Subbarao, JC Shah and JR Mudholkar , the Bench struck down Clause (b) – domiciliary visits at night – of Regulation 236, but upheld the rest. The Bench also held that, “The right of privacy is not a guaranteed right under our Constitution, and therefore the attempt to ascertain the movements of an individual is merely a manner in which privacy is invaded and is not an infringement of a fundamental right guaranteed in Part III (fundamental rights).”
In this case the petitioner Kharak Singh was challaned in a case of dacoity, but was released as there was no evidence against him. Uttar Pradesh Police subsequently opened a “history sheet” against him and brought him under “surveillance”. This was done in exercise of the powers under Chapter XX of the Uttar Pradesh Police Regulations. Regulation 236 authorised six measures of “surveillance”: (a) secret picketing of the house or approaches to the house of suspects; (b) domiciliary visits at night; (c) through periodic inquiries by officers not below the rank of Sub-Inspector into repute, habits, associations, income, expenses and occupation; (d) reporting by constables and chaukidars of movements and absence from home; (e) verification of movements and absences by means of inquiry slips; and (f) collection and record on a history sheet of all information bearing on conduct.
In his writ petition, Kharak Singh had challenged the constitutional validity of Chapter XX, and the powers conferred upon police officials thereunder on the ground that they violated his fundamental rights under Article 19(1)(d) – right to freedom of movement – and Article 21 – protection of life and personal liberty. In this case also privacy was not declared to be a fundamental right.
But in a later case a three Judge Bench verdict in 1975 in Gobind v State of Madhya Pradesh [(1975) 2 SCC 148] it was held that right to privacy was a fundamental right and this was followed by Supreme Court Benches over the last 40 years! In PUCL v Union of India, [(1997) 1 SCC 301], it was held by Apex Court that Courts can proceed on a case by case basis to determine which rights come under the aspects of privacy and which don’t. Justice J Chelameswar of Supreme Court said: “In a Republic founded on a written Constitution, it is difficult to accept there is no fundamental right to privacy…There is a battery of judgments saying privacy is a fundamental right. We have to give serious thought to this question.”
Truth be told, Justice DY Chandrachud cautioned that “those adjudicating on privacy must ensure that our quest for innovation is not stifled”. Intervening during the arguments by senior counsel Rakesh Dwivedi, who appeared for the Gujarat government, Justice Chandrachud aptly said that, “We are a knowledge-based society and privacy cannot be raised to a level where we stifle innovation. Innovation in India is happening in services…data.” He also said that for understanding individual privacy, it would be helpful to envisage three zones – intimate, private and public. In the intimate zone, which encompasses family, personal relationships etc, state interference will be minimal. The second was the private zone where an individual shares personal data with others, like on the social media or for using a service.”
Elaborating further, it must be pointed out that Justice DY Chandrachud set out the tentative thought process and drew support from Justice RF Nariman. He 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 Bench also elucidated further that, “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 regulations. Here, the personal data shared will not mean the right to privacy is surrendered. The individual will retain his privacy to body and mind”. This clearly implies that the right to privacy may not be unfettered.
Needless to say, Justice Chandrachud also sought to make it clear that, “The data so submitted must be used only for the purpose for which it is given”. He added that, “When a person goes from zone one to zone three, the privacy right remains. When it is balanced against state interests, that state interests will have to satisfy the tests of that zone.” There can be no denying it.
As it turned out, Dwivedi said his point was that everything depended on circumstances and hence it would be sufficient if tested on a case-by-case basis, instead of making it a fundamental right. He also said the discussions on privacy will also have to take note of large corporations outside India “which are more powerful that the Indian state” and controlling the information flow. He also wanted to know that, “How does one control Google which has servers outside India?”
Let me bring out here that to this Justice DY Chandrachud answered that, “Yes, you are right that privacy as a practical notion has broken down to a large extent. But let us not use that argument to defeat privacy as a Constitutional notion.” The Bench also realized the difficulty in straitjacket interpretation of constitutional status of right to privacy, it being linked to liberty which has visible footprints on several fundamental rights guaranteed in Part-III of the Constitution.
Let me also bring out here that 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.” There is a great risk of personal information falling into the hands of private players and service providers. On this, Justice Chandrachud rightly said: “I don’t want the state to pass on my personal information to some 2,000 service provider who will send me Whatsapp message offering cosmetics and air conditioners…That is our area of concern. Personal details turn into vital commercial information for private service providers.” As both the government and service providers collect personal data, the chances of data leakage become increasingly more!
It also cannot be missed out here that when the Bench was emphasizing on the sacrosanct tag attached to the right to privacy in the US Constitution, Rakesh Dwivedi while arguing for Gujarat government said that, “If right to privacy was so sanctified in the US Constitution, how could US forces invade privacy of a house (in Pakistan) to eliminate Osama bin Laden? Privacy is a fluid term incapable of being defined, for it changes contours depending on situations.”
Not stopping here, Dwivedi also asked that, “If privacy is intrinsic to many fundamental rights, where is the necessity of defining it as a standalone fundamental right? Can the SC fathom all hues of privacy to present it as a homogeneous right capable of standing alone and aloof from other fundamental rights.” It remains to be seen as to what the Apex Court finally rules on this. All factors will have to be taken into account and Apex Court will certainly do this and deliver a very landmark decision that will be always read very curiously.
Be it also noted, senior advocate CA Sundaram appearing for the Maharashtra government while asserting that privacy would always take a back seat to securing basic needs of people quipped: “What is better, two square meals or right to privacy?” Pat came the reply by Bench that people’s economic rights could never be a ground to undermine fundamental rights. Justice DY Chandrachud rightly 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.” Absolutely right!
Justice J Chelameswar also said on the same lines as that of Justice DY Chandrachud while observing that, “It is a very cruel choice one can give to citizens – two square meals or right to privacy.” Justice RF Nariman also questioned that, “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 sought to repeatedly clarify that he was not against right to privacy as a statutory right. He said that, “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 homogeneous shape as right to privacy and introducing as a standalone fundamental right would not be proper. It was one thing for the Supreme Court 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 Supreme Court 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. Parliament alone can consider, debate and elevate a common law right as fundamental right in the Constitution not the Supreme Court.”
When the Bench pointed out that India had an obligation to respect the right to privacy as it had signed the UN declaration on Human rights, Sundaram said India’s obligation to respect international treaty mandates was under Article 61 of Directive Principles of the Constitution, which was not an enforceable right.” Appearing for Unique Identification Authority of India (UIDAI), Additional Solicitor General Tushar Mehta said the petitioners apprehension that personal data collected for Aadhaar would be used by the government to track activities of citizens is unfounded. He argued that, “Aadhaar Act is an exemplary piece of legislation that protects personal data zealously and punishes data leakage. The personal data protection regime is so stringent that even if the government attempts to know where Aadhaar card has been used, it would be able to get only general data which would not pinpoint the location of the citizen. If a person opens bank account, the government would come to know which bank the citizen has opened the account but not the branch location.”
All said and done, Government has every right to promote Digital India but it should not come at cost of citizens privacy being fully breached! Government must come up with a strong law protecting data privacy so that citizens don’t always live in the shadow of fear of their privacy being breached! In this context, Justice DY Chandrachud rightly pointed out that, “There is no denying that it [Aadhaar] is a social welfare scheme, but you [the government] must first concede that the state is obliged to put a robust personal data protection mechanism in place. There may be a billion Aadhaar card holders. I don’t want the state to pass on my personal information to some 2,000 service providers who will send me Whatsapp messages offering cosmetics and air conditioners… That is our area of concern. Personal details turn into vital commercial information for service providers. Have you got a robust protection mechanism?” Also, it has to be borne in mind that privacy is not just about Aadhaar or data protection alone, it’s about allowing people to make free choices like what to eat, what to drink, whom to marry, right not to be disturbed of sleep by loud speakers etc and not violating their right not to be coerced what they don’t like. I have not even an iota of doubt that the Supreme Court will soon pronounce the right and a very landmark judgment on this so important issue concerning us all which it has reserved now to be decided later!