Day 2 of the hearing to determine whether there is a fundamental right to privacy under the Indian Constitution is underway.
Notes from the hearing:
4:00 pm: Menakshi Arora begins her submission.
Arora: you also need to look at Articles 17, 24, 25 to see support for the right to privacy, not just 14, 19, 21.
— Raman Chima (@tame_wildcard) July 20, 2017
Arora: Unless privacy is put under Article 21, in our digital era, data can be collected without warrants in an unprecedented way
— Raman Chima (@tame_wildcard) July 20, 2017
That’s it for today. Submissions on behalf of the petitioners has concluded. The next hearing will be on Tuesday, July 25.
2:00 pm: Hearing resumes, with Poovaya continuing.
Poovayya: Evolution of US privacy law in digital age in US v. Jones decision; GPS enabled tracking. No need for physical intrusion.
— Raman Chima (@tame_wildcard) July 20, 2017
Poovayya: if Supreme Court upholds right to privacy in India, state will know it has a limited space it can operate in re: digital data
— Raman Chima (@tame_wildcard) July 20, 2017
Poovayya: illustration of earlier Karnataka cab aggregator regulations requiring data of all passenger trips to be shared with state govt.
— Raman Chima (@tame_wildcard) July 20, 2017
Poovayya: existence of a privacy right, it being impinged, may not automatically result in approaching court each time.
— Raman Chima (@tame_wildcard) July 20, 2017
Chandrachud: If state requests that data for terrorism investigation? Poovayya: Acceptable if done under law satisfying Art 21, reasonable
— Raman Chima (@tame_wildcard) July 20, 2017
The bench wants to if privacy is affected if the State collects and stores data, or does the breach of privacy kick in only when the data is used. To which Poovaya says that in the digital age that distinction is very thin (source).
Chandrachud: Might it be that we have to say that when the state collects data, it must state for what purpose and limit itself?
— Raman Chima (@tame_wildcard) July 20, 2017
Chandrachud: Even if 99% of people dont care about collection of their data, may not impact the constitutional place of privacy as a right
— Raman Chima (@tame_wildcard) July 20, 2017
Chandrachud: Refered to people giving access to data to pvt cos. Is there qualitative diff between/w state & private cos in demanding data?
— Raman Chima (@tame_wildcard) July 20, 2017
Poovayya: when we share information for a service or an act, we give it for that limited purpose. That must be recognised in the law.
— Raman Chima (@tame_wildcard) July 20, 2017
Povaya: Does surrendering information remove my right to privacy? No.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Povaya: Privacy is no longer shrouded in secrecy. Information doesn’t need to be secret to be protected by privacy.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Povaya: So my right begins at the stage of collection of data itself.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
At this stage there is a long discussion on disparate topics such as darkweb, proxy servers, Russia, blockchain, and even bitcoin before the bench says that maybe these aren’t relevant to the case at hand (source)!
Povaya: Declaring privacy as a fundamental right is the first step towards ensuring accountability for coordinate branches of government.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Povaya: We should not define the right with too much specifity because technology will overtake us.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Chelameswar: Should we not at least identify what the development has been so far?
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Povaya: I ask the Court to hold that privacy is one of the pillars of the Constitution.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Poovaya concludes.
12:00 pm: State action to prevent human rights abuses, which is required by ICCPR, also has privacy implications (source).
Grover: There is therefore no doubt that Article 17 ICCPR (right to privacy) has to be read into the Constitution.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Privacy is required to protect other rights. Examples are to be given.
— Prasanna S (@prasanna_s) July 20, 2017
Particularly in relation to information privacy. Necessity proportionality and limitation of purpose important among those.
— Prasanna S (@prasanna_s) July 20, 2017
The bench asks if right to identity is part of privacy (source).
DYC J: If a government has a digitised list of convicted criminals for its algorithmic analytics predictive models etc.
— Prasanna S (@prasanna_s) July 20, 2017
it may not be a violation because state may have a legitimate interest. But it may be a violation if a whole segment of a population is
— Prasanna S (@prasanna_s) July 20, 2017
tracked and profiled similarly. Grover reiterates therefore that it must be considered case by case.
— Prasanna S (@prasanna_s) July 20, 2017
CJI: Unless a compulsion to disclose is about an information that is bothersome to your dignity then it will be a violation of privacy.
— Prasanna S (@prasanna_s) July 20, 2017
CJI : There are three tiers…Liberty dignity and then privacy.
— Prasanna S (@prasanna_s) July 20, 2017
Grover concludes. Sanjan Poovaya, who is representing Member of Parliament Rajeev Chandrasekhar, takes over.
SP: This is the first time privacy is being considered as a right in the digital age, by this Court.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
SP: The ramifications of a right to privacy in a digital age are vastly different from those in a non-digital society. E.g., surveillance.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
SP: Privacy resides in many articles of the Constitution. The manifestations of a breach may lie in different articles.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
SP: For instance, my speech may be chilled because I am under surveillance. This is a privacy issue under Article 19(1)(a).
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Lunch break.
10:30 am: Arvind Datar resumed his submissions from yesterday on behalf of the petitioners by recapitulating yesterday’s arguments (read notes from Day 1). Then began discussions on the contours of the right to privacy.
J. Kaul: What about Right to privacy against private players?
AD:Quoting Lawrence tribe, privacy is divided into three parts..— sflc.in (@SFLCin) July 20, 2017
Physical privacy, informational privacy-control over your information, and decisional privacy-autonomy over fundamental personal choices.
— sflc.in (@SFLCin) July 20, 2017
AD: if my privacy is violated by a non state actor, then the remedy is damages and injunction.
— sflc.in (@SFLCin) July 20, 2017
J.Chandrachud: If the fundamental right to privacy is horizontally applied, then the state is obligated to make a regulatory framework to..
— sflc.in (@SFLCin) July 20, 2017
.. protect my privacy.
AD: Horizontal rights can be regulated by the state depending on the extent of its infringement of public interest.— sflc.in (@SFLCin) July 20, 2017
At this point Anand Grover took over from Arvind Datar. He highlighted that because India follows English common law we do not really have right to privacy under that (Source: 1, 2, 3). Hence, he pointed out that, the right to privacy must given a flexible interpretation so that it can adapt depending on the case brought in front of the court (Source: 1, 2, 3).
FRs to be interpreted such that they anticipate newly emerging issues. They cannot be fossilised.
— Prasanna S (@prasanna_s) July 20, 2017
Please do not define privacy. You may indicate the facets of privacy like how Gobind did it.
— Prasanna S (@prasanna_s) July 20, 2017
Grover addresses Chandrachud J.’S question on obligation of private parties by saying that the State’s duty to protect includes a duty +
— Gautam Bhatia (@gautambhatia88) July 20, 2017
+ to take affirmative steps to protect individuals from having their rights infringed by other non-State entities.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
Grover: So long as non-State actors are concerned, the State must enact a law.
— Gautam Bhatia (@gautambhatia88) July 20, 2017
More updates to follow.
