July 20, 2017

Today, Supreme Court’s 9-judge Bench further continued the hearing on the issue Whether  the Right to Privacy should be declared as the Fundamental Right,

Apex Court posed certain questions as to Whether Fundamental Right of Privacy only applies to the State Action or applies to Private Actions also?

While replying to it Senior Advocate Arvind Datar stated that it is first essential to determine what the term “Privacy” constitutes?

He further added that in a thesis written by a student of University of Oslo, Privacy is divided into 3 parts:

Physical Privacy- Protection against tangible and intangible events in private space.

Informational Privacy: Control over dissemation of personal information

Decisional Privacy: Protection of Individual autonomy over Fundamental personal choices.

To this Justice Chandrachud expounded that making Right to Privacy horizontal to Article 21 of Constitution would make it obligatory upon State to make regulatory framework for the rights guaranteed which would have to be followed by Private service provider.

Mr. Datar’s arguments were confined to the impact of the U.S. Constitution and the decisions of the U.S. Supreme Court in deciding of the following two questions-

Can a combined reading of the observations in M.P. Sharma v. Satish Chandra 1954 SCR 107nd in Kharak Singh v. State of U.P. AIR 1963 SC 1295 lead to the conclusion that no fundamental right to privacy exists in our Constitution?

Whether the observations in P. Sharma and in Kharak Singh (majority view) on the right to privacy require to be overruled?

With regard to the M.P. Sharma case, Mr. Datar submitted that the case was confined to the question of violation of Article 20(3) and 19(1)(f) by search warrants issued pursuant to an Inspection Report under Section 138 of the Indian Companies Act, 1913, for searches to be carried out at 34 places simultaneously. He, therefore, contended that the question of the right to privacy being a Fundamental Right never came up for consideration before the Court.

He, thereafter, pointed out that the U.S. Constitution has recognized the right of privacy as a Fundamental Right, and that it would be “regressive to hold, in 2017, that there is no fundamental right to privacy based on one sentence occurring in a in a decision rendered 63 years ago”

Senior Advocate Anand Grover appearing on behalf of the Petitioners submitted before the Apex Court Bench that in the I.R Coelho case and Nagraj Case the Apex Court has expounded that the Constitiutional Provisions should not be given narrow definition. Specially the Fundamental Rights should be given expansive interpretation and must not be limited.

He further added that Article 17 of ICCPR which was ratified by India in December,1977 lays down the Right to Privacy which puts obligation upon the State to respect and protect privacy. Thus State must enact law to protect such rights.

Senior Advocate Anand Grover further submitted various International Laws and Conventions like report of Special Rappoteur of Human Right Council which recognizes existence of Right to Privacy in International Law.

He stated that whether  Right to Privacy has been violated has to be decided case by case to which Justice Chandrachud responded with a question that, ”What constitutes Legitimate and Illegitimate use of data?

To this Anand Grover answered that,” At this stage we cannot decide a formula to decide violation of Right to Privacy, thus has to be seen on case to case basis.

Two test have to be applied : Whether State’s interest is compellable or not?

Whether Action is arbitrary or not?

CJI Khehar expounded that,” If a individual discloses a information which interferes with his dignity. Then State can come and say that it is a legitimate cause”.

CJI further added that ,”Dignity flows out liberty and Privacy flows out of dignity”.

To this Anand Grover replied that,” Dignity is underlying principle then comes Privacy and finally comes liberty”.

Senior Advocate Anand Grover concluded his arguments by stating that, ”Privacy must be read into the Fundamental Rights and is thus definitely part of Fundamental Rights”.

Senior Advocate Sajan Poovayya appearing on behalf of the Petitioners submitted before the Apex Court the statistical data like there are more than 35 crore Internet Connections in India which involve transfer of large amount of data.

Justice D.Y. Chandrachud enunciated that, ”If 99% of the citizens are unconcerned about the sharing of personal data with the private players like Apple, how is it qualitatively different if State has same information”.

To this Sajan Poovayya replied that, “My informed surrender of the data to the private player in this digital age is not my surrender of my personal data to all”.

Justice Chandrachud further added that,” Most of the citizens are unconcerned about where or how their personal data is used. You say there are about 35 crore Internet users and 18 crore telephone users, but the 99% of people are not concerned… When you operate your iPad or IPhone with your thumbprint, your data is public”.

Justice Chandrachud expounded that,”The moment one wants to travel from Mumbai to Delhi, you will get about 100 suggestions. Your private and personal data is in the private hands, so is there anything qualitatively different when State has it? You have thus surrendered your personal life to the private parties, but here we are saying that the State should be restricted from having it,” he stated while addressing Senior Advocate Sajan Poovayya.

Sajan Poovayya submitted before the Apex Court that,” When State collects data, it must be specify the purpose of use of data. Thus the data should be used for that particular purpose only. Because most of the people are unaware of what use the data is being taken for. Hence here the Regulation steps in to ensure where and who uses the  personal data, it is an obligation under Constitution to protect individuals dignity and privacy.

He further added that,” Right to privacy is no more shrouded on secrecy, it holds forth from pedestal of dignity”.

Mr. Poovayya submitted that, “Any State which acts beyond the regulations will move towards the dark web. The Russian proxy websites thrive because State backs them”.

Justice Bobde, while refereeing to the data collection drives for Aadhaar enrolment, said, “but 90% of data is already collected.”

To this Mr. Poovayya replied that, “Yes. But where is it kept? What if my personal data floats around on Internet and even enters dark web? There must be some pre-conditions levied on State to protect data… if they don’t have technology to do it, they should not have taken my personal data from me”.

Senior Advocate Sajan Poovayya submitted that,” One does not know when the data collection today will be used and who will regulate usage of the data”.

Senior Advocate Meenakshi Arora appearing on behalf of the Petitioners traced history of Right to Privacy through the years, submitting that it is amorphous and protean concept that emerges from the values and the principles that have evolved from the case law over hundreds of years.

She further added that, “Right to privacy, or right to be left alone includes components such as privacy of one’s home and residence, privacy of the personal belongings and free from the arbitrary searches and seizures, the privacy of personal choice, and the privacy of personal data.

Ms Arora said that,“Each of these liberties forms an important core or at very least a penumbra of the fundamental rights guarantees in Part III, Constitution, whether considered historically or even in terms of jurisprudence”.

The Apex Court has adjourned the matter for July 25,2017.