Day 6 of Arguments on 2nd August 2017

Mr Rakesh Dwivedi, representing the State of Gujarat, resumed his arguments on August 2nd, 2017 in the Aadhar and The Right to Privacy case.

Mr. Dwivedi began with the contention that there is no need to invent the right to privacy. Privacy rights can be anchored in specific Articles, such as Article 19, and hence be bound by corresponding tests, such as the test of reasonableness under Article 19(2). It should not be read generally within Part III of the constitution.

Justice Nariman pointed out that the right to privacy in the US was ‘invented’ in Stanley v. Georgia (1969), which recognised the inherent right to privacy inside one’s home. He noted that the Mr Dwivedi’s argument brings back the majority view in Kharak Singh (1962) which separated Fundamental Rights. Justice Chandrachud added that behavioural privacy falls under Article 21, in which case Article 19(2) will not apply. The Chief Justice warned against the far reaching consequences of embedding rights in specific Articles, as it will limit the tests applicable to the right, while reading the right in Part III will subject it to multiple tests. That is how, in Maneka Gandhi (1978), the test of reasonableness in Article 19(2) could be read in Article 21.

Mr Dwivedi referred to Kyllo v. United States (2001), where the US Supreme Court held that thermal imaging of the house of persons suspected of growing marijuana violates the privacy rights. Kyllo applies to privacy inside the house, not outside it. He emphasised his point by stating that invasive technology like thermal imaging would help weed out terrorists. He insisted on using the Katz test (1967), that the individual’s expectation of privacy should be limited to what the society considers reasonable. Justice Nariman pointed out that this test has been subsequently rejected by the US Supreme Court. As Mr Dwivedi relied on Minnesota v. Carter(1998), Justice Scalia literally interpreted the fourth amendment, Justice Nariman showed concern that he is asking Article 21 to be textually interpreted.

Justice Chandrachud noted that the protection of privacy must not stifle the spread of knowledge and innovation. He contemplated three zones of privacy:

  1. Intimate zone, that covers aspects such as marriage, sexual orientation, reproduction
  2. Private zone, where a person can choose to not share his privacy with others; and
  3. Public zone, where privacy of mind and body exists, but protection is minimal.

When moving from the intimate zone to public zone, the level of protection of privacy is modulated accordingly and the extent of state regulation becomes broader. However, he emphasised that there is no surrender of privacy rights.

Mr Dwivedi agreed with the zones, reiterating that an abstract right to privacy is a slippery slope. Praying for the application of a purposive test, he contended that if data collected is for a beneficial purpose then it can be collated and analysed. Justice Nariman noted that privacy rights should still be protected and be balanced with the public’s right to know. Mr Dwivedi responded that privacy rights are circumstantial. For more information of a public nature, the Katz test should be applied, and in case of sensitive personal information, harm and injury test should be applied. Govind v. State of Madhya Pradesh (1975) allows state interest to trump reasonable expectation of privacy. To answer Justice Bobde’s query on Article 8 of the ECHR, Mr. Dwivedi pointed out that the Article contains the test of reasonable expectation of privacy.

Mr Dwivedi contended that ‘liberty’, ‘dignity’ and ‘fraternity’ in the preamble were introduced for the benefit of the downtrodden, such as Dalits, and do not apply to privacy. Moreover, due process in the American context has been rejected in India. The tests of just, fairness and reasonableness should not be expanded. Justice Nariman pointed out that substantive due process has been in Indian law since Bachan Singh. Mr Dwivedi replied that the due process test was rejected in Maneka Gandhi, and confined to ‘just, fair, and reasonable’ in Bachan Singh. He argued that substantive due process was 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 pointed out that even the Supreme Court Rules require personal information and Aadhaar details to file a PIL. He argued that only people who have something to hide need privacy. Justice Chandrachud clarified that data with the Supreme Court cannot be used for a purpose other than for which it is collected. Moreover, the fact that the notion of privacy is already broken with the advancement of technology is not a valid argument to take away the constitutional protection of privacy.

Mr. Dwivedi concluded by stating that in the age of technology, data and metadata should be mined for useful purposes. Mr. Dwivedi argued that private entities using individuals data is seen as data collection and utilization for commercial use. Justice Nariman distinguished personal and sensitive data from data put out on Facebook. Justice Chelameshwar pointed out that every regulation on right to privacy may not be bad, but it does not mean that the right to privacy does not exist.

(Mr. Rakesh Dwivedi, Sr. Advocate is appearing for the state of Gujarat in (Writ Petition(Civil) No. 494 of 2012), K.S. Puttaswamy(Retd) & Am. Versus Union of India & Others.)