Day 2 Hearings (Sajan Poovayya)

Fundamental Right to Privacy

Day 2 of Arguments on 20th July 2017

Mr. Sajan Poovayya first addressed arguments on where the right to privacy resides contending that the right was an inherent and all pervading aspect of the Constitution and need not necessarily flow from one particular Article of the Constitution. He argued that a breach of the privacy right could impede multiple freedoms including that of speech, as evolved from  Sakal Papers Pvt. Ltd. & Ors v Union of India & Ors (1961) to  Shreya Singhal v Union of India(2015), or that of movement depending on the facts of each case. Further, the ramifications would only escalate in a digital economy.

Justice Chandrachud mused that privacy in a digital society can be contrasted from a physical society, observing that the decisions in Gobind v State of Madhya Pradesh(1975) Olmstead v United States(1928) and Katz v United States(1967) all governed privacy in the physical realm. He asked Mr. Poovayya to address arguments on privacy in the electronic domain. Mr. Poovayya submitted that this was the first discussion on privacy since the digitization of the country, a step that had a significant impact on the right. Had it not been for Aadhar, the question of privacy would have inevitably presented itself before the Court owing to the increased pace of flow of information in the digital age.

Justice Chelameshwar sought clarification whether it was the collection or the use of data that was objectionable. Justice Chandrachud further questioned whether the State’s approach should be to specify the purpose for the collection of data and limit use to that sole purpose. Mr. Poovayya replied that both collection and use of data are simultaneous in a metaphysical, digital world, and unless there were just and reasonable laws for data protection, both collection and use would be problematic. The Constitutional protection offered to the right to privacy should ensure that consent is furnished for the quantum and purpose of data collection. In response to Justice Chnadrachud question whether collection of information to track terrorist activity would also violate the privacy, Mr. Poovayya responded that the collection under a just and fair law following proper procedure would be permissible as the Right to Privacy is not absolute. However any law enacted for the purpose would have to be tested on the touchstone of Article 19(2) of the Constitution.

The Bench queried how collection of data by the State was qualitatively different in an age where Articial Intelligence and private players were all relying on biometric data and details of private life to operate.  Mr. Poovayya argued that information provided to private entities was for a limited purpose, unlike the State. There would have to be safeguards for collection and use of personal data by the State for there is no trade off between privacy and convenience even where information is voluntarily furnished. (See U.S. v Jones (2012))  The State could not justify violation of privacy nor discard its obligation to protect the same owing to other bad actors. Mr. Subramanium interjected that extent of power of the State to collect information could only be determined once the privacy right was recognised by the Court. Mr. Poovayya further submitted that the State was under an obligation to protect the digital identity of its citizens as it does their physical person and declaring the right to privacy as a fundamental right would be the first step towards fulfilling that obligation.

Justice Chelameshwar reiterated that the privacy right would have to qualified and developed on a case to case basis to which Mr. Poovayya argued that it was impossible to determine the scope of privacy with technology developing at an escalated rate and a likelihood of unforeseeable violations. He quoted Justice Subba Rao’s observations in Kharak Singh v State of Uttar Pradesh(1962) noting liberty was restricted more effectively by psychological restraints than physical ones. He also referred to Justice Matthew’s decision in Govind v State of Madhya Pradesh(1975), and the dissenting opinion of Justice Brandeis in Olmstead v United States(1928).

Mr. Poovayya concluded noting that had privacy been offered constitutional protection earlier, the State would not have had the liberty to collect the biometric data of the entire citizenry in the manner that has been done in Aadhar. The focus would have been to pass a law that met the test of Articles 14, 19 and 21.

(Mr. Sajan Poovayya appeared for the Applicant in IA No. 5/2014 in W.P.(C) 833/2013 Aruna Roy & Anr. v Union of India & Ors. which has been tagged with this matter.)