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1 IN THE SUPREME COURT OF INDIA (CIVIL ORIGINAL JURISDICTION) WRIT PETITION (CIVIL) NO. 494 of 2012, 797 of 2016 & 342 of 2016 K.S. Puttaswamy(Retd) & Anr.

…

Petitioners

…

Respondents

Versus Union of India & Others.

ADDITIONAL

WRITTEN

SUBMISSION

ON

BEHALF OF THE RESPONDENT/ STATE OF GUJARAT

BY

RAKESH

DWIVEDI,

SENIOR

ADVOCATE. 1.

Three Constitutional Constructs are competing for acceptance :-

A.

Privacy as a general right is intrinsic or implicit part of Article 21. Hence, all infringements must be backed by law which is reasonable, just and fair [1978 (1) SCC 248, Maneka Gandhi Vs. UOI], and that brings in Substantive due process [2014(9) SCC 737, Mohd. Arif Vs. Supreme Court].

B.

There is no fundamental right to privacy under the Constitution of India.

C. (i) Every privacy concern with its context must first objectively establish itself as a reasonable legitimate expectation of society in the eyes of court so as to be considered as implicit in Article 21. (ii)

It should not be overridden by another person‟s right under Article 21 or other Fundamental Right.

(iii).

Once held as implicit in Article 21, the State must satisfy that infringement is (i) by law (ii) law is for a legitimate public purpose (iii). law is reasonable, just and fair. Due process does‟nt apply.

“PERSONAL LIBERTY” EXPANSIVELY CONSTRUED 2.

In (1967) 3 SCR 525 @ 540, Satwant Singh Sawhney v. D.

Ramarathnam, Asstt. Passport Officer, (1967) 3 SCR 525 @ 540 Suba Rao

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2 CJ, referred to the exposition of personal liberty in Kharak Singh and held that it includes within itself “all the varieties of rights which go to make up the personal liberties of man” and observed that it “ bears the same comprehensive meaning as is given to the expression “liberty” under the U.S. Constitution.” Of course in view of A.K. Gopalan Vs State of Madras (1950) 2 SCR 88 , the liberties enshrined in Article 19 were stated to be excluded. In Maneka Gandhi (1978) 1 SCC 248, Bhagwati J endorsed the aforesaid with a further expansion that “ it is not a valid argument to say that the expression personal liberty in Article 21 must be so interpreted as to avoid overlapping between that Article and Article 19”. “Personal Liberty” was said to be an expression of widest amplitude, and the procedure prescribed by law should be reasonable, just and fair ( having regard to the impact of Article 14) (Pr 5 @ Pg 280). With this, right to go abroad was held to be covered by Article 21, but not integral to Article 19(i)(a) in all situations. Thus, as regards Article 21 it has to be seen whether privacy in general as claimed by Petitioners , is an attribute of life and personal liberty guaranteed by Article 21.

PRIVACY IS A CONTEXTUALLY LIMITED AND VARIABLE CONCEPT WITH AN INHERENT FADING CHARACTERSTIC 3.

Privacy exists in contrast to „Public‟ or what is made public. As a person

moves out of his Castle and the more he opens the gates of his Castle and personhood, his privacy would fade and dissipate. As the person relates to others, singularly or in groups, his privacy would get diluted. So also when he relates with institutions of all kinds and also State. This is where the “context” assumes great significances when adjudging whether a claim qualifies to be judicially recognized as a “Life and Personal Liberty” claim under Article 21. It is largely, if not entirely, a relative and variable concept, and hence amorphous. Therefore, it ought not to be recognized as a general concept to be implicit in Article 21. 4.

It is submitted that the court should adopt a cautious approach in

recognizing a particular privacy claim as implicit in Article 21. The right to privacy is a jurisprudential realm where globally the courts are still groping amidst confusion to ascertain the extent of privacy concerns which should be recognized as a constitutional right. Many a times, the court has proceeded on an assumption that a claimed right is a Fundamental Right under the Constitution. It is noted in Gobind Vs State of M.P. (1975) 2 SCC 148 [ Mr Shyam Divan’s Compilation Pg 123] that the US SC recognizes that “a right of personal privacy , or a guarantee of certain areas or zones of privacy does

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3 exist under the Constitution”. ( Pr 19). In para 20 they observed that framers of our Constitution “must have deemed to have conferred upon an individual as against the Government a sphere he should be let alone”. Yet, in para 23 they observe against a broad definition of privacy as such a right was not explicit in the Constitution. Thus, the court was against a general recognition of a right to privacy. Further, the court in para 22 and 24 has stressed, as the only suggestion that the “unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty‟ . They recommend in para 28 that the right to privacy will have to undergo case by case development. Yet again, in para 23 , the court has emphasized that “privacy interest in autonomy must also be placed in the context of other rights and values.” ( also, in the context of right to life and personal liberty of others, as in the case of Mr. X Vs Hospital Y (1998) 8 SCC 296. 5.

It is safer to say that right to privacy as a part of personal liberty under

the Constitution may exist in matters of personal intimacies, home and family life, correspondence, personal health. This is what Charles Warren and Louis D Brandeis intended in their article “ The Right to privacy”. According to them, the idea of privacy has been understood as “the idea of private space in which man may become and remain himself” (Pr. 90 of Gobind).

All Human Right

Convention ratified by India talk of respecting the private and family life , home and correspondence. The expanse is in narrow confines. Beyond this, complex issues arise in the domain of informational privacy. 6.

Thus, despite the expansive approach sanctified by Maneka Gandhi’s

case only a certain zone of privacy contextually determined can get incorporated as implicit in Article 21. The concept of privacy being relative and flexible and of an amorphous kind the same as a generalized concept cannot be said to be integral to Article 21.

RIGHT TO CHOICE 7.

Article 21 includes the right to choose the way of life. Both “ life” and

“personal liberty” are individually and conjunctively wide enough to include the right of a person to make his choice with regard to his life and his growth and development . He can choose the space in which he wishes to operate and the manner in which he will operate. It is another matter that the range and extent of choice would depend upon the alternatives which are available considering the stage of development of the society. There is therefore a distinction

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4 between the right to choose and the extent of choice. The ability to make the choice would also depend upon the ability of the person to choose and this will include the financial abilities. Equally, the person can choose to act in private space or in public space. He may choose to be “ let alone” and be in privacy or he may choose to step out in the open and public. The submission is that the making of choice is distinct from privacy. The right to choose is directly integral to and intrinsic right to life and personal liberty in Article 21 [Coelho Vs State of T.N. (2007)2 SCC 1 Pr 140 ] . The Petitioner‟s contention that right to choice or decisional autonomy is contained in right to privacy is clearly erroneous. Right to choice cannot be located in privacy. It is another matter that one can make decisions or choice while being by himself . PRINCIPLE OF LIMITED PURPOSE 8.

In the domain of informational privacy question arises as to what extent

there would be a valid privacy claim implicating “life or personal liberty” when a person choses to disclose personal information to third party or several other parties with whom he relates to. It is submitted:(i). Where the information is merely the basic identity information there would be no claim of privacy rights whatsoever under Article 21. Such information is part of identification information and is expected to be commonly and generally disclosed in human relation in the present day society. (ii). Information which is more than basic identity information and pertains to other aspects of personal identity and the disclosure had been made by the person to another in a relationship of confidentiality, a presumption of limited purpose disclosure preventing further transference or utilization, could be set to arise and implicate Article 21, provided that the further disclosure or transference is likely to cause significant injury or stigma. (iii).Where the second kind of information is transmitted to another in a relationship which is not involving confidentiality then the further transference and utilization of the information, as such or in an aggregated and analyzed form, would not involve any implication of Article 21. Non-confidential relationship does not, without more, involve any assumption that it has been given for a limited purpose. This is specially so if the transference has been made unconditionally. (iv).Where personal information has been transmitted to the public at large or to a considerably large number of persons/institutions/service

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5 providers, then also the claim of privacy would fade out. The concept of privacy is not only relative and contextual but it also has an inherent fading attribute. The more the personal information goes into the public, the more will the informational privacy get diluted and eventually will fade out. 9.

In the aforesaid circumstances an arching principle of limited purpose

disclosure if at all, should be drawn only with respect to the arch of sensitive personal information transmitted to another person in a confidential relationship disclosure of which could have a real likelihood of causing significant harm or injury. It should be an important condition attached to the principle that the information can be further transferred or utilized provided such transference or utilization is not likely to cause any significant injury or stigma. 10.

It is also important that no overarching principle be devised which

obstructs the growth of overall knowledge fund available with society. Data or even meta data needs to be aggregated analyzed to produce further knowledge for the benefit of the society. That enriches „life‟ and “Personal Liberty” both. 11.

We are in an informational, knowledge and technological era.

Technology with artificial intelligence is growing rapidly. It helps, facilitates and empowers. We cannot stand with our backs towards the growth of technology. The approach to growth of technological, information and knowledge cannot be allowed to be ostrich like or Luddite (fear stricken). While, we may be entitled to protect ourselves from significant harm and or injury, there should be no obstruction to the use of information collected. 12.

Drawing of an overarching principle based on limited purpose disclosure

has serious problems :(i).

It creates an assumption of limited purpose even where the information has been parted unconditionally and voluntarily.

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6 (ii).

It creates an assumption of limited purpose disclosure even where a person has freely and deliberately traded off the personal information for superior benefits.

(iii).

It would actually infringe on the person‟s right to choice.

(iv).

It is impossible to implement such a principle for two reasons. (a).

The tremendous growth of technology is likely to present a

scenario where the computer, collects, aggregates and analyses then transmitted information simultaneously. (b).

The servers may well be located outside India, the

aggregation, analysis and utilization may happen abroad. There is no way to control it. Horizontal regulation is not possible. (v).

It also needs to be borne in mind that the overarching principle is very likely to be exploited by the criminals, corrupt and terrorist. As an illustration a person having committed a crime may disclose the information confidentially to his close circle of friends or a criminal having got injured while committing a crime approaches a doctor or hospital (which is in confidential domain) then the commission of crime which has become known to a third party cannot be transferred to the State. Identically, a minor rape victim may disclose the information to a teacher would be entitled to transfer the information not only to the family crime agencies of the State. There can be such instances of disclosure of crime in the context of money laundering and hoarding of black money.

13.

Therefore, nature of information and causation of harm or injury are

important aspects and no absolute overarching principles of limited purpose should be devised.

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7 14.

Requirement of consent for further transfer and utilization of personal

information, given knowingly and unconditionally, particularly in a nonconfidential commercial relationship extends “ownership” idea into a parted information which post-parting assumes property dimensions. This does not flow from privacy or choice. 15.

Also notable is the fact that worth of parted information arises upon

aggregation and the aggregated information is not the same thing as information of individual received. ***