Day 2 of Arguments on 20th July 2017

Mr. Anand Grover followed Mr. Arvind Datar on Day 2 of the 9 Judge Bench of the Supreme Court on whether the right to privacy is a fundamental right under the Constitution of India, 1950.

Mr. Anand Grover began by noting that while English common law recognises a right against trespass of the body, American common law recognises a civil right to privacy. He argued that, as Indian courts adopt English common law and not US common law, the Union’s submission (on 18th July) that there was a common law right to privacy in India has no legal basis. Hence, it is necessary to ground privacy protection in the Constitution.

He urged the Court to follow I.R. Coelho v. State of T.N. (2007) and interpret the Constitution as a living document and adapt Fundamental Rights to changing circumstances. In M. Nagaraj v. Union of India (2007), the court interpreted the Constitution expansively to include new human rights and prevent fossilisation. Moreover, such an interpretation was necessary in order for India to comply with its international obligations.

Mr. Grover then sketched out the right to privacy in international law. Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights protect privacy. The Human Rights Council in General Comment No 16 to the ICCPR understood privacy to oblige the State to respect, protect and take necessary measures towards its fulfilment. He explained that ‘respect’ entails the duty of the State not to itself violate the right; ‘protect’ entails the obligation to prevent other non-State entities from violating this right; ‘necessary measures’ requires the enactment of a regulatory framework for such protection. Irrespective of whether privacy was a fundamental right or a common law right, in the absence of a statutory framework in India, Mr. Grover argued that it was the State’s duty to legislate.

He then showed that European Court of Human Rights recognised a privacy right subject to the tests of legality, necessity, and proportionality. European law stressed on independent judicial oversight over restrictions on privacy and he insisted only such a law would be constitutionally valid.

Mr. Grover showed that the Court has incorporated international law to fill gaps in constitutional jurisprudence – Francis Coralie Mullin v. Administrator, UT of Delhi (1981), Bachan Singh v. State of Punjab (1982), Vishaka v. State of Rajasthan (1997), and National Legal Services Authority v. Union of India (2014). Notably, NALSA and Francis Corallie recognized human dignity as the foundation of all constitutional rights. He argued that it is the same concept of human dignity that grounds the privacy right.

Justice Chandrachud asked if the right to protect one’s identity was linked with the right to privacy? Would a single mother or adopted child have the right to not disclose biological parentage to passport authorities? Was there, he continued, a right to remain anonymous? Mr. Grover replied that in the digital age there was only the illusion of anonymity. To a limited extent, one could choose to not be online and stay anonymous.

Justice Chandrachud then queried if the right to privacy related to the process of recording data while the right to protect one’s identity be tied to the way the data is used? So, a government using artificial intelligence to analyze metadata to determine who is predisposed to crime would be an illegitimate purpose as it would stigmatise some sections of the population. He enquired if the same logic would apply if meta-data analysis was to ensure that socio-economic benefits reached the right recipients?

Justice Khehar suggested that the right to identity was affected not only by the use of data but the effect of such use on the individual. Hence, compelling someone to reveal information that they were not inclined to do violates his right to privacy. Such compulsion to reveal information offends the dignity of the individual. He observed that Mr. Grover had not made the crucial link between liberty, dignity and privacy. He suggested that privacy flows from dignity, which in turn flows from liberty. Mr. Grover responded that dignity is the underlying value and that privacy is necessary to protect dignity. While all dignity claims may not be related to privacy, all privacy claims arise out of dignity. He concluded his arguments with the caution that it is not possible to lay down a specific formula for the application of the right to privacy; instead, it should be developed on a case to case basis.

 

(Mr. Anand Grover, Sr. Advocate is appearing for the Petitioners in Writ Petition (Civil) No. 833/2013, Aruna Roy and Another vs. Union of India and Ors , which has been tagged with this matter.)