Guest Post: Judicial Accountability and Fundamental Rights – I

(We all know the old chestnut – the Supreme Court is not final because it is right, but it is right because it is final. But if it is the Constitution that is truly the supreme law of the land, then is it possible for a Supreme Court decision to be unconstitutional? More specifically, if the Supreme Court is part of the “State”, one of the three wings of government under classic separation of powers doctrine – and there seems to be no prima facie reason in political philosophy against that proposition – then surely it too, under the terms of Article 13, is subject to Part III and the Bill of Rights? But is a Supreme Court decision “law” within the meaning of Article 13? And if that is so, where lies the remedy? If it is to the Court, then we raise the specter of infinite regress – each Supreme Court judgment appealed again on the ground that it violates someone’s fundamental rights. This is a veritable minefield of thorny issues of constitutional principle and policy. In this series of guest posts, Krishnaprasad K.V., M.Phil candidate at the University of Oxford, examines this fascinating and under-explored area)

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Much has been said, on this blog and elsewhere, about the Indian Supreme Court’s decision in Naz v Koushal. Some thought has also been given to the larger implications of that decision, notably, from the point of view of separation of powers and the meaning of ‘equality’. My point of departure however, is a question posed by Arghya Sengupta in his insightful piece in The Hindu:

“It is imperative that the Court is taken to task, not only for this decision, but for all its other decisions whose results we might agree with as citizens, but whose reasoning is inexplicable at best and absurd at worst… the Court has made a judgment that is value-laden and based on a particular worldview that many disagree with… If it is legitimate for the Court to make such a choice, it is even more legitimate for citizens to ask: who will judge our judges?” (emphasis mine)

 

I will argue that at least one set of standards to which judges must be held accountable, are those found within Part III of the Constitution. In practical terms, (without going into the (in)correctness of Naz v Koushal) this means that the Supreme Court in Naz may have infringed the “so-called [fundamental] rights” of what the Court deemed “a miniscule fraction of the country’s population.”

This result is however, seemingly precluded by precedent; so much so that a Constitution bench of the Supreme in Ashok Rupa Hurra felt no hesitation in concluding with little reasoning that “superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.” If this is correct, it must follow that the judiciary is incapable of violating Part III rights.

In Part I, I will demonstrate that, contrary to the assumption in Ashok Rupa Hurra, precedents are far from conclusive on this point. Part II will then ask what the answer must be on principle.

Almost consistently, courts have dismissed petitions that attempt to impugn judicial orders under Art. 32. Prima facie, this must mean that judicial orders are not subject to scrutiny on Part III grounds. One of the earliest illustrations is the decision of a seven-judge bench of the Supreme Court in Ujjam Bai v State of Uttar Pradesh. There, a quasi-judicial determination of tax liability by a Sales tax officer was challenged under Art. 32. The court held that a petition of this nature was not maintainable unless:

(a) the action is under an ultra vires statute or;

(b) the action taken is without jurisdiction; or

(c) where the action is procedurally ultra vires.

A nine-judge bench in N. S. Mirajkar v State of Maharashtra followed this decision. A petition under Art. 32 challenging a gag order passed by Mr. Justice Tarkunde of the Bombay High Court was held to be not maintainable in that case. This trend is also evidenced by Triveniben v State of Gujarat. Dismissing a petition under Art. 32, the Court there opined that “it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner.” It is unnecessary to duplicate other instances here, but further affirmation of this view may be found in Krishna Swami v Union of India, Mohd. Aslam v Union of India, Khoday Distilleries Ltd. v Registrar General, Supreme Court of India, and P. Ashokan v Union of India. All of these were attempts to challenge judicial orders by way of petitions under Art. 32.

 A. R. Antulay v R. S. Nayak appears as a lone instance taking the contrary view. The question there was whether directions issued by the High Court singling out the petitioner’s prosecution for speedier trial violated his Art. 14 and Art. 21 rights. Seemingly departing the trend evidenced above, the Court held:

 

“In our opinion, we are not debarred from re-opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution.” (emphasis mine)

 

However, at least three other Constitution benches of the Supreme Court (here, here and here) have taken the view that Antulay must be “confined to the peculiar circumstances of that case.” It is hard to see this as anything other than a euphemism for ‘Antulay was incorrectly decided’.

This consistent judicial stance is however, almost entirely thrown into reverse by cases that consider the judiciary’s role in advancing the goals set out in Part IV. Mathew J.’s decision in Kesavananda Bharati is an excellent example. There, “it seemed clear” to Mathew J. that “judicial process is also State action.” Later, in State of Kerala v N. M. Thomas, the majority held that Part IV goals must “inform and illuminate” the Court’s interpretational task. Notably, even this conclusion was pegged on view that courts are “State” under Art. 12:

“Not only is the directive principle embodied in Article 46 binding on the law-maker as ordinarily understood but it should equally inform and illuminate the approach of the Court when it makes a decision as the Court also is ‘state’ within the meaning of Article 12 and makes law even though interstitially from the molar to the molecular.” (emphasis mine)

 

A relatively recent Constitution bench decision of the Supreme Court in Harjinder Singh v Punjab Warehousing Corporation goes one step further. There, the “authoritative pronouncements” in N. M. Thomas and Kesavananda Bharati led the court to conclude that courts are “State.” The Court cited with approval Hidayatullah J’s minority judgment in N. S. Mirajkar making no mention whatever of the majority’s view in that case. High Courts (here and in On The Death of Tilckansa Phukan his heirs and Legal representatives v Lalit Chandra Borbakuah, (1985) 2 GLR 376, for example) have followed suit.

In sum, the near-consistent judicial stand (for an exception, see Budhan Chowdhury v State of Bihar) has been as follows – judiciary assumes the role of “State” in advancing Part IV goals; judicial orders are however, not subject to challenge on Part III grounds. Put differently, judiciary is “State” for Part IV purposes, but not so under Part III. With respect, it is unnecessary to engage in long-drawn-out legal reasoning to establish that this distinction is unsustainable. Even a cursory reading of Art. 36 should suffice:

“In this Part, unless the context otherwise requires, “the State” has the same meaning as in Part III.”

Interestingly, Mathew J.’s judgment in Kesavananda Bharati, which formed the basis of much of the later jurisprudence recognising the court’s obligations under Part IV, admits this conclusion. Mathew J. held, “the definition of the word ‘State’ both for the purpose of Part III and Part IV is the same.”

It is difficult to escape the conclusion that in this area of the law, it is the concern about practical consequences rather than principle that has dictated legal results. The unanimous judicial view suggests that under Part IV, courts assume similar obligations as other organs of the “State”. However, the Supreme Court has stopped short of taking this result to its logical conclusion – that judicial orders are also subject to Part III scrutiny. One of the concerns that may have motivated this double standard is the fear that the contrary view may open the floodgates to Art. 32 petitions. Is this fear legitimate? In any case, are there sufficiently strong reasons of principle that dictate a contrary result? Part II will consider these questions.

Breaking: ACLU vs Clapper holds Bulk Surveillance Legal – Implications for India

On this blog, we had discussed earlier the oral arguments in ACLU v Clapper. Just now, the New York District Court has ruled bulk surveillance legal, going against the decision of the Columbia District Court in Klayman v Obama (if it wasn’t already, this makes it inevitable that eventually, the United States Supreme Court will be called upon to settle the conflicting lower court decisions).

As we had discussed earlier, ACLU v Clapper consisted of two claims: a statutory one, based on S 215 of the Patriot Act, which is of no concern to us, since no parallel legislation with a similar history exists in India. The second claim was a constitutional one, based on issues of free association and privacy, which is directly relevant to India.

On a quick reading of the judgment the following important points emerge:

– contrary to ACLU’s submissions, the Court held that the 1978 precedent of Smith vs Maryland applied, which had held that an individual had no privacy interest in information voluntarily turned over to third parties (telecommunications providers).  As we have discussed on this blog, the Indian courts have rejected Smith vs Maryland and its precursor, US vs Miller, in the 2004 judgment of Distt Collector vs Canara Bank. Holding that privacy is a right of persons, not places, the Supreme Court affirmed in Canara Bank that an individual has a privacy interest in personal financial documents held by a third party (the bank). [the New York court’s Smith analysis can be found in pages 39 – 43] The Court also holds that the Fourth Amendment lays down a standard of reasonableness, and does not require that the “least intrusive method” be used when carrying out a search within the terms of the Constitution. Again, arguably, the position is different in India. As we have seen, the compelling State interest test for privacy violations goes hand-in-hand with narrow tailoring, as is evident by the rules framed by the Court in PUCL vs UoI, and those accepted as constitutional in State of Maharashtra vs Bharat Shantilal Shah, which categorically required the government to explore other, less intrusive methods of surveillance before carrying out interceptions, and also required it to intercept to the minimum extent possible to carry out its goals. 

– The Court also ruled that the argument that bulk collection would have a chilling effect on the freedom of association was not well-founded. To recap: ACLU had argued that the knowledge that is call records were being collected would lead to a “chilling effect” in that it would restrict the communication and association rights of hostile and unpopular (yet legal) groups, who would self-censor in an attempt to avoid governmental knowledge of their activities. The reasoning of the Court appears to be that what was taking place was only collection; actual querying of the metadata to reveal specific information could be undertaken only on specific grounds. Since the likelihood that ACLU’s data itself would be queried and reviewed rested upon an “attenuated chain of possibilities“, the chilling effect had not been proven. In this way, the Court implicitly distinguished prior cases like NAACP vs Alabala, where for instance, a group treated with hostility by the government had been required to reveal its membership lists. Whatever the merits of this argument, once again, the key point upon which it turns is that the NSA surveillance is restricted to metadata collection. Consequently, the logic does not apply to something like the CMS, which is all about intercepting bulk content. [see pages 45 – 46 for the First Amendment analysis]

An extraordinary statement at the end:

“The effectiveness of bulk telephony metadata collection cannot seriously be disputed.” [p. 48]

However, as Klayman found, that is precisely what is under dispute. In the fifty-four instances cited by the government, it had failed to demonstrate that the outcome would have been materially different in anyone. (see here for an analysis). In other words, there is a familiar story here: in a national security case, a judge takes the executive’s words at face value, and accords an extremely high level of deference. The Indian courts have an ignominious history in this regard (Habeas Corpus), and it will be crucial how this particular claim is treated in the Indian courts.

The New York court ruling is certainly a blow for privacy rights. Like Klayman vs Obama, Indian privacy lawyers ought to study it carefully, not only because of what it holds, but because of what implicitly follows: if the holding of legality is founded upon legal arguments that have been considered and rejected by the Indian Supreme Court, and upon factual premises directly opposed to those prevailing in India, ACLU vs Clapper might – paradoxically – be more of an ally than an enemy in the fight against bulk surveillance.

 

Surveillance and Privacy in India – VII: Summary

Over the last six posts, we have tried to examine – chronologically – Indian Supreme Court cases dealing with the constitutional right to privacy, with a specific focus on surveillance. Our enquiry has spanned fifty years and many different aspects of law that touch an individual’s personal life – from criminal law practices (police surveillance, narco-analysis, self-incrimination) to phone-tapping, from marital relations to the status of one’s bank records. Despite the diversity of cases and the differing reasoning employed by judges to reach differing results over time, we have seen that a careful analysis reveals certain unifying strands of logic and argument that can provide a coherent philosophical and constitutional grounding to the right to privacy in Indian law, bases that the Court can – and should – draw upon in order to decide an eventual CMS/bulk surveillance challenge in a principled manner.

We can commence by emphasizing the distinction between two sets of privacy cases, a distinction that the Court has failed to appreciate so far. One set of cases involves privacy claims between private parties. Examples include a hospital revealing a patient’s medical records (Mr X v Hospital Z), or one spouse tapping the other’s phone (Rayala v Rayala). Now, these cases involve the infringement of a privacy right, but they do so as a matter of private law, not constitutional law. As a matter of principle, the remedies would lie in tort – the tort of invasion of privacy, for instance, or breach of confidence. The Court’s invocation of Article 21 in these cases must be deplored as a serious mistake. Article 21 is sets out a constitutional right, and unless otherwise expressly provided by the Constitutional text (see, e.g., Article 15(2)), constitutional rights are applicable vertically against the State, and not horizontally between individuals. Once again, a simply hypothetical will illustrate the absurdity of cases like Rayala: A murders B. Very obviously, the law governing this incident is the Indian Penal Code, which defines murder and prescribes the punishment for it. A has not violated B’s Article 21 right to life by murdering him. Now, there is something to be said for philosophical arguments that challenge the public/private State/individual dichotomy as a matter of first principle. That, however, is not our concern here. Whatever the philosophical validity of the distinction, there is little doubt that our Constitution subscribes to it quite explicitly, by having a Part III in the first place, and with provisions such as Articles 13 and 32.

There is one way of reconciling these cases. That is to read them not as invoking Article 21 as a ground for the decision, but invoking it to infuse the right to privacy with substantive content. That is, the private law right to privacy and the constitutional right to privacy, while rooted in different sources and enforceable against different entities, nonetheless (reasonably enough) codify the same abstract conception of what privacy is – and it is to that end that the Court, in private-party cases, cites 21.

This is crucial, because it helps to clarify the way in which these two rights are different, and to make sense of a jurisprudence that would be hopelessly incoherent otherwise. The difference lies in the standard for justifying an infringement. In the private-party cases, the Court – rightly – treats the matter as balancing various rights and interests involved of the different parties to the case. Mr X v Hospital Z, for instance – as understood by the Court – required a balancing of the patient’s right to privacy against his future in-laws right to know about prior, debilitating medical records in order that there be informed consent to the marriage. Small wonder then, that in these cases the Court – again, rightly – cites Article 8 of the ECHR, and analyses them in the language of proportionality.

In cases involving the State, however, we have seen that the Court has (almost uniformly) insisted upon the far higher standard of compelling State interest. Again, there is a logic to this distinction. The importance of maintaining a private sphere against State intrusion, the extent to which the State now has the power to intrude (as we have all seen over the last six months), considerations that ultimately go to the heart of maintaining a free and democratic society – all justify (if not necessitate) a higher standard. Once we understand this, it is possible now to understand why the Supreme Court has adopted one test in some cases, and another test in other cases. The justification is a principled one (even if the Supreme Court might not have been aware of it).

Proceeding, then, to the Article 21 constitutional right to privacy. The Court has located this within Article 21’s guarantee of personal liberty. In the early cases – Kharak Singh and Gobind – the Court understood the philosophical foundations of privacy to lie in the idea of individual dignity; that is, the basic thought that in order to live a dignified life, one must be able to have a sphere of action that is free from external invasion (this, essentially, is what is meant by the phrase, often used by the Court, “the right to be left alone). The dignitarian justification of privacy is to be sharply contrasted with another justification, that held the field in American Constitutional law for a long while: the propertarian justification, that grounds privacy in the idea that government is to keep off private property. This is what is meant by the Supreme Court’s slogan, “the right to privacy belongs to persons, not places.”

Ultimately, possibly, the basic philosophy is similar – advocates for property rights argue that without a certain measure of private property, an individual cannot live an independent and dignified life. Practically, however, the shift encodes an analytical difference. A propertarian foundation – concretely – would involve a set of spaces that are placed out of bound (e.g., the Fourth Amendment’s list of “homes, papers, effects” etc.) The dignitarian foundation would extend its scope to acts and places with regard to which persons have a reasonable expectation of privacy. Naturally, this will – and has – led to different results in practice, with the dignitarian foundation leading to more expansive privacy protection.

The persons-not-places justification also led the Supreme Court to reject the third-party doctrine, according to which privacy interest is lost when personal effects are voluntarily handed over to a third party. In Canara Bank the Court emphasized that the character of those items – their personal nature – does not change simply because their location has changed. The privacy interest is retained, whether they are bank records, or telephone details.

These are the contours of the privacy right. Naturally, it is not absolute, and the Court has taken pains to specify that on numerous occasions. What, then, justifies an infringement? The Court has consistently called for a “compelling State interest“, one that rises beyond the simple “public interest” encoded in the 19 restrictions. Side-by-side with compelling State interest, the Court has also required – although it has never expressly spelt it out – the restrictive law to be narrowly tailored. In other words, the government must show that its infringing law not only achieves the compelling State interest, but does so in a way that restricts privacy in the narrowest possible manner. If there are other conceivable ways of achieving the same goal that do not infringe upon privacy to the extent the impugned law does, the law will be struck down. We see this in the police surveillance cases, where in Gobind, for instance, the Court read into Regulation 855 an additional requirement of gravity, to ensure that it was narrowly tailored; and we see it even more clearly in the phone-tapping cases, where the Court’s rules require not only specification of persons, numbers and addresses, but also require the State to resort to surveillance only if other methods are not reasonably open, and in so doing, to infringe privacy minimally. Targeting, indeed, is critical: all the surveillance cases that we have explored have not only involved specific, targeted surveillance (indeed, S. 5(2) of the Telegraph Act only envisages targeted surveillance), but the very fact that the surveillance is targeted and aimed at individuals against whom there are more than reasonable grounds of suspicion, has been a major – almost dispositive – ground on which the Court has found the surveillance to be constitutional. Targeting, therefore, seems to be an integral aspect of narrow tailoring.

I do not mean to suggest that the above is a complete philosophical account of privacy. It ignores, for instance, the very legitimate concern that creating a private sphere only serves to justify relations of non-State domination and oppression within that sphere – both symbolically, and actually (see, for instance, the infamous marital rape exception in Indian criminal law). It presumes – instead of arguing for – the basic philosophical idea of the ultimate unit of society being indivisibly, atomized individual selves living in hermetically sealed “zones” of privacy, an assumption that has come under repeated attack in more than fifty years of social theory. I hope to explore these arguments another day, but the purpose of this series has been primarily doctrinal, not philosophical: to look at surveillance in the framework of established constitutional doctrine without questioning – at least for now – the normative foundations of the doctrine itself.

Our conclusions, then, summarized very briefly:

– the right to privacy is an aspect of Article 21’s guarantee of personal liberty, and is grounded in the idea that a free and dignified life requires a private sphere

– one does not necessarily lose one’s privacy interest in that which one hands over to a third party

– an infringement of privacy must be justified by a compelling state interest, and the infringing law must be narrowly tailored to serve that interest

As far as the CMS, Netra and other dragnet surveillance mechanisms go, it is clear, then, that they implicate a privacy interest; and to justify them, the government must show that there is no other way in which it could achieve its goals (of combating terrorism etc) without bulk surveillance on an industrial scale.

If recent judgments of our Supreme Court do not exactly instill confidence in its role as the guarantor of our civil liberties, its long-term record in national security cases is even worse. A.K. Gopalan, Habeas Corpus and the 2004 PUCL come to mind as examples. It is therefore unclear how the Court will rule on a CMS/surveillance challenge. One thing is clear, though: the privacy law jurisprudence that it has developed over the last fifty years provide it with all the analytical tools to fulfill its constitutional mandate of protecting civil liberties. Consistent with the narrow tailoring test, the Supreme Court ought not to allow the government to baldly get away with asserting a national security interest, but require it to demonstrate not only how national security is served by dragnet surveillance,  but also how dragnet surveillance is the only reasonable way of achieving national security goals. The possibility of abuse is too great, and the lessons that history teaches us – that totalitarianism always begins with pervasive governmental spying over individuals – is to be ignored at all our peril.

In that respect, last week has been significant, as it witnessed the beginnings of the pushback against the American surveillance state. In his opinion on the Columbia Circuit Bench, which we referred to on this blog, not only did Judge Leon hold the NSA spying program likely to be unconstitutional, but notably, he refused to accept NSA claims of national security on their face. He went into the record, and found that out of the 54 instances that the NSA had cited of allegedly foiled terrorist plots, it had miserably failed to prove even one where the outcome would have been different without bulk surveillance. This is a classic example of how narrow tailoring works. And later in the week, the Review Panel set up by President Obama emphatically rejected the contention that bulk surveillance is a necessary compromise to make in the liberty/security balance. Given this, and given the worldwide pushback underway against such surveillance measures, from Brazil to Germany, it would be a constitutional tragedy if the Supreme Court ignored its own well-crafted jurisprudence and let the government go ahead with bulk surveillance on the basis of asserted and unproven national security claims. Tragic, but perhaps not entirely unexpected.

Surveillance and Privacy in India – VI: The Third Party Doctrine and Untidy Endnotes

I must thank Amlan for bringing to my attention an important aspect of the Canara Bank case, that I overlooked in my discussion in the last post. I had pointed out how Canara Bank departed from the American Supreme Court case of Miller in basing privacy upon a personal, as opposed to propertarian, foundation (“privacy is of persons, not places”). Miller, however, also stood for an important proposition known as the “third party doctrine”, which has direct implications for the law of privacy in the context of the CMS. It is crucial to examine Miller in relation to Canara Bank with respect to that. Amlan rightly pointed out that if Canara Bank rejects the third-party doctrine, then this has profound implications for the constitutionality of CMS-surveillance; we must therefore pay close attention to the issue.

Before we commence, one distinction: there is a difference between telephone tapping (that Malkani held certainly violates a privacy interest), and telephone records that are held by telephone companies and are then turned over to the government (the NSA’s PRISM project, the GCHQ’s Tempora Project, and our very own CMS). The third-party doctrine isn’t applicable to the Malkani case of the government directly tapping your line, but becomes very important precisely when the information is routed to the government via a third party (in this case, the telecom companies). Since there is no settled case in India (to my knowledge) on CMS/PRISM style surveillance, we must examine the third-party doctrine as developed elsewhere.

Recall that in United States vs Miller,  the question was whether a person had a privacy interest in personal records held by a bank. The Court held he did not, since:

“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

This is known as the third-party doctrine. Speaking for four members of the Court in dissent, Justice Brennan rejected it, reasoning that:

“[A] depositor reveals many aspects of his personal affairs, opinions, habits, associations. Indeed, the totality of bank records provides a virtual current biography. . . . Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds.”

Three years later, in Smith vs Maryland, the question arose whether a pen register (that is, an electronic device that records all numbers called from a particular telephone line), installed on the telephone’s company’s property, infringed upon a legitimate expectation of privacy. The Court held that it did not, because:

“Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

Smith vs Maryland is essentially the third-party doctrine applied to telephone records. Records in question are knowingly and voluntarily passed on to a third party (the telephone company), the customers being aware that the third party is storing and recording them. Consequently, there is no reasonable expectation of privacy. Of course, there is a gap in the logic: the fact that we have no reasonable expectation of privacy against the telephone company storing and recording our data does not mean that we have no reasonable expectation of privacy that government will not do so. Nonetheless, Smith vs Maryland was what the government has relied upon in the recent NSA litigations across American District Courts. In the oral arguments in ACLU vs Clapper, for instance, which we have discussed previously on this blog, the government’s entire privacy argument was based upon the Smith vs Maryland holding, and ACLU’s counter-arguments turned upon how, in the last thirty years, the use of the telephone had increased so much, with so many personal details now part of phone records, that Smith no longer held the field.

This week, in Klayman vs Obama, Judge Leon at the Columbia District Court accepted in substance, the ACLU argument. He observed that “the relationship between the police and phone company in Smith is nothing compared to the relationship that has apparently evolved over the last seven years between the Government and telecom companies” – that is, a formalized policy as opposed to a one-time collection. Judge Leon then went on to hold that not only was the government’s surveillance technology vastly more all-encompassing than it had been in 1979, but also that “the nature and quantity of information contained in peoples’ telephony data is much greater as well.” The “ubiquity” of phones had altered both the amount of information available, and what that information could tell government about peoples’ lives (and indeed, previously on this blog we have discussed how bulk surveillance of telephone records can enable government to construct a complete record of a person’s social, sexual, religious and political mores). Consequently, Judge Leon held that there was likely to be a reasonable expectation of privacy in telephone records.

Does Canara Bank, in rejecting Miller, reject the third-party doctrine as well? I think it does so, although not unambiguously. In the Court’s mind, the third party doctrine is a corollary of the propertarian theory of privacy. Thus, in paragraph 54, the Court observes:

“Once we have accepted in Govind and in latter cases that the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-a’-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.“

The Court here conflates “no longer at the customer’s house” (persons v places) and “voluntarily sent to the Bank” (third party). Because even if one holds that the right to privacy belongs to persons and not places, it is logically possible to hold that once one voluntarily turns over one’s information to someone else, one no longer has a privacy interest in it. The Court, however, expressly forecloses that option by reading the two together – because the right of privacy belongs to persons and not to places, therefore we retain our privacy interests even in those documents that we have voluntarily turned over to a third party. In other words, the Court’s logic appears to be that the nature of the documents vis-a-vis us remains unchanged despite their location shifts from beyond our control, even if this shift is knowingly and voluntarily cause by us. Thus, it would appear that Canara Bank adopts a particular conception of privacy-interests-belong-to-peoples-and-not-places, one that rejects the third party doctrine. To repeat: this is not the only way in which we can understand the people/places distinction; conceptually, people/places and third-party come apart, as they have done so in American law. What we have tried to do here is to make sense of the Canara Bank holding, and I submit that the only way to do so is to understand Canara Bank as rejecting third party through one specific conception of people/places. Thus, the Smith v Maryland argument is not open to the government if it wishes to collect data from telecom companies or, in the case of the internet, ISPs. In light of Canara Bank, the privacy interest remains.

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We may now end our substantive privacy law discussion by a brief examination of two cases whose locus lies in the domain of medical tests, although in differing areas. Selvi v State, decided in 2010, involved the constitutionality of narco-analysis and polygraph tests during police investigations, and the testimonial statements obtained therefrom. The Court had no trouble in finding that, insofar as these techniques interfered with a person’s mental processes in order to elicit information from him, they infringed his right to privacy. The Court then summarily rejected the State’s argument of a compelling interest in eliciting information that could lead to the prevention of crime, holding that: “There is absolutely no ambiguity on the status of principles such as the `right against self-incrimination’ and the various dimensions of `personal liberty’. We have already pointed out that the rights guaranteed in Articles 20 and 21 of the Constitution of India have been given a non-derogable status and they are available to citizens as well as foreigners. It is not within the competence of the judiciary to create exceptions and limitations on the availability of these rights.”

This passage is curious. While a non-derogable right need not be an absolute right, our privacy jurisprudence suggests that the right to privacy is indeed derogable – when there is a compelling State interest. Insofar as Selvi goes beyond the accepted doctrine, it is probably incorrectly decided; nonetheless, it affirms – once more – even if only through contentions made by the State, that the relevant standard for infringement is the compelling interest standard. Furthermore, in subsequently investigating whether compelled undertaking of narco-analysis or polygraph tests are actually likely to reveal the results that the investigating authorities need – and finding them unconstitutional because they don’t – the Court takes a path that resembles narrow tailoring.

Lastly – and most recently – Rohit Shekhar v Sri Narayan Dutt Tiwari dealt with a Court order requiring a compulsory DNA test in a paternity dispute. After lengthy citation of foreign precedent, the Court entered into a bewildering discussion of the relationship between DNA tests and the right to privacy. It held that depending upon the circumstances of a case, mandatory testing would be governed by a number of factors such as a compelling interest, a probable cause, decreased expectations of privacy, and so on. (Para 79) It then went on to hold: “forced interventions with an individual’s privacy under human rights law in certain contingencies has been found justifiable when the same is founded on a legal provision ; serves a legitimate aim ; is proportional ; fulfils a pressing social need ; and, most importantly, on the basis that there is no alternative, less intrusive, means available to get a comparable result.” This is extremely strange, because the first three conditions form part of a classic proportionality test; and the last two are – as readers will recognize – the two parts of the compelling state interest – narrow tailoring test. Indeed, the Court contradicts itself – “legitimate aim” and “pressing social need” cannot both be part of the test, since the latter makes the former redundant – a pressing social need will necessarily be a legitimate aim. Consequently, it is submitted that no clear ratio emerges out of Rohit Shekhar. It leaves the previous line of cases – that we have discussed exhaustively – untouched.

Surveillance and Privacy in India – V: After PUCL (and an aside on “Netra”)

Before we continue our discussion of privacy, surveillance and civil liberties, we may note media reports this week on “Netra“, the government’s new internet surveillance system. Netra is supposed to detect words like “attack”, “bomb”, “blast” and “kill”from tweets, SMSes, emails – and all other forms of online communication. Now, forget for a moment that a terrorist who uses his personal Nokia Lumia 520 to send an unencrypted text message over an unsecured Airtel network to his fellow-terrorist, saying “We iz gonna bomb blast the Parliament tmrw and kill some people LULZ!” is probably not going to be competent enough to blow up a balloon, let alone Parliament. But that apart, Netra is an example par excellence of what it means for something to be over-broad and not narrowly tailored: there are innumerable legitimate, non-terroristy uses of these words, in literal language, in metaphor, in allusion, in allegory, in poetry and most of all, in slang (let’s face it – do you really trust our security spooks to understand that saying “have a blast!” or “that plan totally bombed, dude!” actually has nothing to do with violence?). Netra’s dragnet is non-discriminating enough to capture all of them. Undoubtedly, the law is a blunt instrument, but that does not mean you use a hammer to perform brain surgery.

—

We noted how PUCL entrenches a compelling state interest/narrow tailoring test for infringements of privacy. Cases after PUCL are a mixed bag. District Collector v Canara Bank, decided in 2005, is notable for containing the most detailed examination of the development of American law, as well as Indian law, on searches and seizures and the associated right to privacy. In that case, Section 73 of the Stamp Act, that allowed – inter alia – the Collector to access private records that would normally be subject to the confidentiality relationship between banker and customer, was challenged. The Court made two very important observations: responding to the contention that once one had voluntarily given over one’s bank records to a third party, there was no privacy interest remaining in them (as held in the much-critcised American case of US v Miller), the Court made an obiter observation in Gobind the centerpiece of its holding:

    “the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-`-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank…. once that is so, then unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the Bank tend, to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality.”

Three things stand out: the first is an affirmation that the right is one that vests in persons (consequently, when we support this with the PUCL holding, the privacy interest in phone data becomes inescapable); secondly, once again in line with all previous cases, the Court requires reasonable suspicion before the surveillance in question (in this case, a search and seizure) is undertaken. Once again, then, there is a clear indication that anything more than a targeted search is ipso facto unreasonable. And thirdly, the Court reads down a provision to mean that in order to save it from unconstitutionality (as it read procedural safeguards into S. 5(2) Telegraph Act, and as it will hopefully do to the IT Act).

The Court’s second holding is equally interesting:

“Secondly, the impugned provision in sec. 73 enabling the Collector to authorize ‘any person’ whatsoever to inspect, to take notes or extracts from the papers in the public office suffers from the vice of excessive delegation as there are no guidelines in the Act… under the garb of the power conferred by Section 73 the person authorized may go on rampage searching house after house i.e. residences of the persons or the places used for the custody of documents. The possibility of any wild exercise of such power may be remote but then on the framing of Section 73, the provision impugned herein, the possibility cannot be ruled out.”

    This paragraph is critical, because for the first time, the Court rules that if the framing of the legislation leaves it open to an abuse of privacy rights, then the legislation is constitutionally problematic even though the possibility of abuse is remote. And this is what is precisely the problem with bulk surveillance – collecting the content of every citizens’ communications reveals to the government (and, by extension, private contractors, to the extent they are involved) everything about your personal life. Your religious beliefs, your political views, what you watch on the internet, which restaurant you go to eat, your friends, workmates and lovers – one doesn’t need so summon up an Orwellian dystopia to understand the vast possibility of abuse here, abuse that was not even contemplated by the judges in Canara Bank who held S. 73 unconstitutional, abuse that is ripe for being inflicted upon dissidents and unpopular minorities, precisely the groups that a Constitution is most required to protect. It is submitted, therefore, that both aspects of the Canara Bank holding make it extremely difficult to justify across-the-board bulk surveillance.

Following on from Canara Bank, in P.R. Metrani v State, a search and seizure provision in the Income Tax Act (S. 132(5)) was construed strictly as it constituted a “serious invasion into the privacy of a citizen.” Similarly, Directorate of Revenue v Mohammad Nissar Holia involved the interpretation of the search and seizure provisions of Ss. 42 and 43 of the NDPS Act. Citing both Canara Bank and Gobind, the Court held that the right to privacy was crucial, and imposed a strict requirement of written recording of reasons (once again, notice the targeted nature of the search) before an NDPS search-and-seizure could be carried out.

In light of these cases, the Court’s 2008 judgment in State of Maharashtra vs Bharat Shantilal Shah must rank among the more disappointing opinions that the Court has handed down in an area in which its jurisprudence has been satisfactory, as a whole. Bharat Shantilal Shah involved a constitutional challenge to Ss. 13 – 16 of the Maharashtra Control of Organised Crime Act that, like PUCL, involved provisions for interception of telephone (and other wireless) communications. The Court dismissed the contention in a paragraph, refusing to take the trouble of a meaningful analysis:

    “The object of the MCOCA is to prevent the organised crime and a perusal of the provisions of Act under challenge would indicate that the said law authorizes the interception of wire, electronic or oral communication only if it is intended to prevent the commission of an organised crime or if it is intended to collect the evidence to the commission of such an organized crime. The procedures authorizing such interception are also provided therein with enough procedural safeguards, some of which are indicated and discussed hereinbefore.”

    It is disappointing that the Court does not even refer to compelling State interest or narrow tailoring, although the underlined portion might hint at something of the sort. Nonetheless, if we scrutinize the impugned provisions closely, we can understand the kind of safeguards that the Court found satisfactory. Section 14, for example, requires details of the organized crime that “is being committed” or is “about to be committed” before surveillance may be authorized; the requirements include, in addition, a description of the “nature and location of the facilities” from which the communication is to be intercepted,  the “nature of the communication” and, if known, “the identity of the person.” In addition, 14(2)(c) requires a  “statement as to whether or not other modes of enquiry or intelligence gathering have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous or is likely to expose the identity of those connected with the operation of interception.” 14(2)(d) requires special reasons for surveillance to continue after information has been received. An extension application, under 14(2)(f), requires an update on results thus far. Section 14(8) limits duration to sixty days, permitting extensions on specific grounds but only – again – for a period of sixty days, and requires “minimal interception.”

The attentive reader will note that this is – in terms – a codification of the PUCL rules; and like PUCL, the focus of these rules is to prevent abuse through specificity: specificity of individuals and locations, specificity of duration of surveillance, specificity of reasons. Once again – and it almost no longer bears repeating – surveillance is tolerated only because of its narrow, targeted nature, a position further buttressed by the 14(2)(c) requirement of exhausting all other options that achieve the same goal without infringing upon privacy before actually resorting to interception. Thus, even though the Bharat Shantilal Shah bench did not refer to compelling State interest and narrow tailoring, it is obvious that their upholding of MCOCA was predicated upon these considerations.

In our next – and last substantive post – in this series, we shall examine some of the more recent privacy cases from the last four years that do not deal directly with surveillance, but raise important constitutional issues nonetheless.

Surveillance and Privacy in India – IV: Analysing the Landmark PUCL Judgment

Let us return, now, to our paradigm cases of surveillance. In 1997, the Supreme Court decided PUCL v Union of India. This case is the most important privacy case after Gobind, and the most important case for our purposes, that of studying surveillance. It therefore deserves very close study.

At issue in PUCL was telephone tapping, which is – for obvious reasons – central to our enquiry. In PUCL, the constitutionality of S. 5(2) of the Telegraph Act was at issue. This Section reads:

“On the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government or any Officer specially authorised in this behalf by the Central Govt. or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of and offence, for reasons to be recorded in writing, by order, direct that any message clear of messages to or from any person or class of persons, relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detailed, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.” (Emphasis Supplied)

S. 5(2), therefore, necessitates a number of issues. The first is the meaning of the terms “public emergency” and “public safety”. The second is the meaning of the terms “persons or class of persons”. And the third – and this was the core of the arguments in the PUCL case – is the scope of the procedural safeguards required to make this Section constitutionally legitimate. A close reading of the case, I suggest, places PUCL firmly within the continuing tradition of Kharak Singh and Gobind, in setting stringent safeguards upon infringements of privacy.

The first thing to note is whether S. 5(2) is relevant at all to the question of bulk surveillance, a la CMS. There are at least three reasons to suggest that it is not. First, the Indian Telegraph Act is an 1885 legislation, drafted at a time when bulk surveillance was unimaginable, and aimed at addressing a very different problem – interception of individual telegraphic messages for specific, short-term purposes. Secondly, the term “persons or class of persons” in S. 5(2) is clearly indicative of identifiable individuals (or classes of individuals), and is not meant to include the citizenry as a whole. And thirdly, the Court’s own guidelines militate against reading a permission for bulk surveillance into the Act (I’ll come to this later). S. 5(2), therefore, does not authorize bulk surveillance, and does not authorize the CMS.

That said, let us now examine the development of privacy law in the case. The Court held unambiguously that individuals had a privacy interest in the content of their telephone communications. It cited Kharak Singh, Gobind and R. Rajagopal for the proposition that privacy was a protected right under Article 21. Coming, then, to the all-important interpretation of “public emergency” and “public safety”, the Court held – and it is submitted correctly – that the two phrases “take their colour off each other”. It defined public safety as the state of safety or freedom from danger for the public at large, and argued that neither a public emergency nor public safety could be “secretive”, but must be evident to the reasonable person.

There is an elementary reason why “public emergency” and “public safety” cannot be given widely divergent interpretations. This is because if the standard embodied by one was laxer than the standard embodied by the other, then the latter would become redundant: in other words, if “public safety” is interpreted more broadly than public emergency, then there would be no point to having the phrase “public emergency” at all, because any public emergency would necessarily be a matter of public safety. The two categories must therefore be non-overlapping, referring to different aspects, and requiring roughly the same standard to be attracted. This argument is buttressed by the fact that the Court required a proclamation of an Emergency via public notification: now if that procedural safeguard is required in one case (Emergency), but the government can simply get around it by doing the same thing (phone interception) under the guise of public safety then, once again, “public emergency” becomes an almost redundant category, something clearly beyond the expectation of the legislature. For “public safety” to have any teeth, therefore, it must refer to a specific situation of identifiable danger – and not a general, vague idea – perhaps – of containing potential terrorist threats.

This position is buttressed by the Court’s citation of the Press Commission Recommendations, used the phrases “national security”, “public order” and “investigation of crimes”; the Press Commission also urged regular review, and expiry within three months, once again suggesting that what was contemplated was a specific response to a specific situation, one that would expire once the situation itself expired (this is in keeping with the targeted-surveillance focus that we have seen in Kharak Singh, Malkani, Gobind and Pooran Mal). The Commission also categorically ran together “public emergency” and “public safety”, by holding that in the interests of public safety, the surveillance power should be exercised one month at a time, extendible if the emergency continued (as we have argued above, this makes sense).

After citing the Press Commission observations with approval, the Court then addressed the question of whether judicial review was necessary. Taking its cue from the English Interceptions Act of 1985, it held that it was not. The Central Government had the authority to make the rules governing the specific exercise of the interception power. Since it had not done so for all these years, however, the Court stepped in to fill the breach.

The Court’s rules are extremely instructive in order to understand how surveillance and privacy interact with each other. Under Rules 2 and 4, the Court required that the communications to be intercepted be specified (Rule 2), and the persons and the addresses specified as well (Rule 4); this is a very familiar proscription against general warrants – see, e.g., the American Fourth Amendment – “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized“. The whole purpose of this part of the Fourth Amendment was to mitigate the evil – prevalent under British colonial rule – of general warrants, giving a blank cheque to colonial officials to conduct widespread, dragnet invasions of privacy, as happened in the landmark case of Entick v Carrington. Indeed, the Virginia Declaration of Rights, one of the precursors of the Fourth Amendment, recognized even more explicitly the dangers to liberty that general warrants embodied, and clearly made this an issue about containing untrammeled executive power, and subjecting it to the rule of law:

“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.”

Therefore, Rule 4, based as it is upon such lineage, clarifies beyond any doubt that S. 5(2) does not permit bulk, indiscriminate surveillance; because if it did, it would not make any sense to require specificity of disclosure for communication, persons and addresses. Once again, the idea is simple: the government must act on some reasonably strong suspicion before it begins to infringe citizens’ privacy – it cannot simply do so on a general belief that at some point in the future the information it gleans might come in use; and it cannot intercept the data – and intrude upon the privacy of – innocent citizens, suspected of no wrongdoing.

Rules 3 and 7, read together, codify the narrow tailoring rule: Rule 3 requires the government to take into account whether “the information which is considered necessary to acquire could reasonably be acquired by other means.” Rule 7 states: “the use of intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.” The minimum necessary and reasonable acquisition by other means are a clear enunciation of the narrow tailoring rule, that requires the infringement of a right to be narrowly tailored to the legitimate State goal, and holds it invalid if that goal could be achieved in a manner that was less of an infringement upon the right in question.

What, then, are we to take away from PUCL? In my view, three things:

(a) Neither the Telegraph Act nor the Court contemplates bulk surveillance. Consequently, the Court’s specific view that targeted surveillance does not need judicial review is not necessarily true for bulk surveillance.

(b) Rigorous standards are needed to justify an infringement of privacy rights – in other words, a compelling State interest (although the Court does not use the specific term).

(c)  Privacy restrictions must be narrowly tailored, if they are to be constitutional. This means that they must be targeted, based on specific suspicion of identifiable individuals (as opposed to a general dragnet sweep), and the only means possible to fulfill the government’s goals of public safety and crime prevention. In both (b) and (c), therefore, the Court continues with the strong privacy-protection standards developed in Gobind, and afterwards.

And at the end of the day, it affirms one very basic thought: that for liberty to flourish, there is an aspect of all our lives that must remain private from government.

Surveillance and Privacy in India – III: The Public/Private Distinction and the Supreme Court’s Wrong Turn

We have seen that Gobind essentially crystallized a constitutional right to privacy as an aspect of personal liberty, to be infringed only by a narrowly-tailored law that served a compelling state interest. After the landmark decision in Gobind, Malak Singh v State of P&H was the next targeted-surveillance history-sheeter case to come before the Supreme Court. In that case, Rule 23 of the Punjab Police Rules was at issue. Its vires was not disputed, so the question was a direct matter of constitutionality. An order of surveillance was challenged by two individuals, on the ground that there were no reasonable bases for suspecting them of being repeat criminals, and that their inclusion in the surveillance register was politically motivated.  After holding that entry into a surveillance sheet was a purely administrative measure, and thus required no prior hearing (audi alteram partem), the Court then embarked upon a lengthy disquisition about the scope and limitations of surveillance, which deserves to be reproduced in full:

    “But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court’s protection which the court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly R.23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobstrusive and within bounds. Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance. There is no order as to costs.”

Three things emerge from this holding: first, the Court follows Gobind in locating the right to privacy within the philosophical concept of individual dignity, found in Article 21’s guarantee of personal liberty. Secondly, it follows Kharak Singh, Malkani and Gobind in insisting that the surveillance be targeted, limited to fulfilling the government’s crime-prevention objectives, and be limited – not even to suspected criminals, but – repeat offenders or serious criminals. And thirdly, it leaves open a role for the Court – that is, judicial review – in examining the grounds of surveillance, if challenged in a particular case.

After Malak Singh, there is another period of quiet. LIC v Manubhai D Shah, in 1993, attributed – wrongly – to Indian Express Newspapers the proposition that Article 19(1)(a)’s free expression right included privacy of communications (Indian Express itself had cited a  UN Report without incorporating it into its holding).

Soon afterwards, R. Rajagopal v State of TN involved the question of the publication of a convicted criminal’s autobiography by a publishing house; Auto Shankar, the convict in question, had supposedly withdrawn his consent after agreeing to the book’s publication, but the publishing house was determined to go ahead with it. Technically, this wasn’t an Article 21 case: so much is made clear by the very manner in which the Court frames its issues: the question is whether a citizen of the country can prevent another person from writing his biography, or life story. (Paragraph 8) The Court itself made things clear when it held that the right of privacy has two aspects: the tortious aspect, which provides damages for a breach of individual privacy; and the constitutional aspect, which protects privacy against unlawful governmental intrusion. (Paragraph 9) Having made this distinction, the Court went on to cite a number of American cases that were precisely about the right to privacy against governmental intrusion, and therefore – ideally – irrelevant to the present case (Paras 13 – 16); and then, without quite explaining how it was using these cases – or whether they were relevant at all, it switched to examining the law of defamation (Para 17 onwards). It would be safe to conclude, therefore, in light of the clear distinctions that it made, the Court was concerned in R. Rajagopal about an action between private parties, and therefore, privacy in the context of tort law. It’s confusing observations, however, were to have rather unfortunate effects, as we shall see.

We now come to a series of curious cases involving privacy and medical law. In Mr X v Hospital Z, the question arose whether a Hospital that – in the context of a planned marriage – had disclosed the appellant’s HIV+ status, leading to his social ostracism – was in breach of his right to privacy. The Court cited Rajagopal, but unfortunately failed to understand it, and turned the question into one of the constitutional right to privacy, and not the private right. Why the Court turned an issue between two private parties – adequately covered by the tort of breach of confidentiality – into an Article 21 issue is anybody’s guess. Surely Article 21 – the right to life and personal liberty – is not horizontally applicable, because if it was, we might as well scrap the entire Indian Penal Code, which deals with exactly these kinds of issues – individuals violating each others’ rights to life and personal liberty. Nonetheless, the Court cited Kharak Singh, Gobind and Article 8 of the European Convention of Human Rights, further muddying the waters, because Article 8 – in contrast to American law – embodies a proportionality test for determining whether there has been an impermissible infringement of privacy. The Court then came up with the following observation:

    “Where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. Akali’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay.”

    With respect, this is utterly bizarre. If there is a clash of two rights, then that clash must be resolved by referring to the Constitution, and not to the Court’s opinion of what an amorphous, elastic, malleable, many-sizes-fit “public morality” says. The mischief caused by this decision, however, was replicated in Sharda v Dharmpal, decided by the Court in 2003. In that case, the question was whether the Court could require a party who had been accused of unsoundness of mind (as a ground for divorce under the wonderfully progressive Hindu Marriage Act) to undergo a medical examination – and draw an adverse inference if she refused. Again, whether this was a case in which Article 21 ought to be invoked is doubtful; at least, it is arguable, since it was the Court making the order. Predictably, the Court cited from Mr X v Hospital Z extensively. It cited Gobind (compelling State interest) and the ECHR (proportionality). It cited a series of cases involving custody of children, where various Courts had used a “balancing test” to determine whether the best interests of the child overrode the privacy interest exemplified by the client-patient privilege. It applied this balancing test to the case at hand by balancing the “right” of the petitioner to obtain a divorce for the spouse’s unsoundness of mind under the HMA, vis-à-vis the Respondent’s right to privacy.

In light of the above analysis, it is submitted that although the outcome in Mr X v Hospital Z and Sharda v Dharmpal might well be correct, the Supreme Court has misread what R. Rajagopal actually held, and its reasoning is deeply flawed. Neither of these cases are Article 21 cases: they are private tort cases between private parties, and ought to be analysed under private law, as Rajagopal itself was careful to point out. In private law, also, the balancing test makes perfect sense: there are a series of interests at stake, as the Court rightly understood, such as certain rights arising out of marriage, all of a private nature. In any event, whatever one might make of these judgments, one thing is clear: they are both logically and legally irrelevant to the Kharak Singh line of cases that we have been discussing, which are to do with the Article 21 right to privacy against the State.

BREAKING: US Federal Court holds NSA Surveillance “Likely” Unconstitutional under Fourth Amendment

Just now, the US Federal Court has held that the NSA’s bulk metadata telephony surveillance is “likely unconstitutional” under the Fourth Amendment. “Likely” because this was a motion for a preliminary injunction, and the grounds for an injunction are based upon the plaintiff’s likelihood of success.

I haven’t had time to read the judgment in detail, but a quick skim-through reveals that under the two-step Fourth Amendment test, the Court found, first, that people have a reasonable expectation of privacy in  their telephone data, because of the sheer volume of personal information that is transacted via phone; and on an investigation of evidence, the Court found that the infringement was unreasonable, because there was no evidence to demonstrate that the compelling State interest – that of protecting national security – was actually being served effectively by said collection. On p. 64, the Court observes:

“I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and  high-tech collection and retention of personal data on virtually every single citizen for the purpose of querying and analyzing it without prior judicial approval. Surely such a program infringes on the degree of privacy that the Founders enshrined in the Fourth Amendment.”

Indian privacy lawyers would do well to study this judgment closely. As we have argued before in this blog, the two-step Fourth Amendment test is materially similar to Article 21’s right-to-privacy/compelling State interest test. Of particular interest is the Court’s conclusion that:

(a) We do have a reasonable expectation of privacy in our telephone records

(b) The government cannot simply assert national security; the burden lies upon it to actually show that bulk surveillance is effectively serving this purpose – and that is, show through demonstrable evidence of terrorist attacks foiled or prevented.

(c) The absence of judicial approval for mass surveillance is constitutionally fatal.

All of these positions are extremely relevant for the constitutionality of the CMS. We shall see how this judgment progresses through the Courts.

Surveillance and Privacy in India – II: Gobind and the Compelling State Interest test

After its judgment in Kharak Singh, the Court was not concerned with the privacy question for a while. The next case that dealt – peripherally – with the issue came eleven years later. In R.M. Malkani v State of Maharashtra, the Court held that attaching a recording device to a person’s telephone did not violate S. 25 of the Telegraph Act, because “where a person talking on the telephone allows another person to record it or to hear it, it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone.” Although this case was primarily about the admissibility of evidence, the Court also took time out to consider – and reject – a privacy-based Article 21 argument, holding that:

“Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods.”

     Apart from the fact that it joined Kharak Singh in refusing to expressly find a privacy right within the contours of Article 21, there is something else that unites Kharak Singh and R.M. Malkani: they hypothetical in Kharak Singh became a reality in Malkani – what saved the telephone tapping precisely because it was directed at “… a guilty person”, with the Court specifically holding that the laws were not for targeting innocent people. Once again, then, the targeted  and specific nature of interception became a crucial – and in this case, a decisive – factor. One year later, in another search and seizure case, Pooran Mal v Inspector, the Court cited M.P. Sharma and stuck to its guns, refusing to incorporate the Fourth Amendment into Indian Constitutional law.

It is Gobind v State of MP, decided in 1975, that marks the watershed moment for Indian privacy law in the Constitution. Like Kharak Singh, Gobind also involved domiciliary visits to the house of a history-sheeter. Unlike Kharak Singh, however, in Gobind the Court found that the Regulations did have statutory backing – S. 46(2)(c) of the Police Act, which allowed State Government to make notifications giving effect to the provisions of the Act, one of which was the prevention of commission of offences. The surveillance provisions in the impugned regulations, according to the Court, were indeed for the purpose of preventing offences, since they were specifically aimed at repeat offenders. To that extent, then, the Court found that there existed a valid “law” for the purposes of Articles 19 and 21.

By this time, of course, American constitutional law had moved forward significantly from eleven years ago, when Kharak Singh had been decided. The Court was able to invoke Griswold v Connecticut and Roe v Wade, both of which had found a “privacy” as an “interstitial” or “penumbral” right in the American Constitution – that is, not reducible to any one provision, but implicit in a number of separate provisions taken together. The Court ran together a number of American authorities, referred to Locke and Kant, to dignity, to liberty and to autonomy, and ended by holding, somewhat confusingly:

“the right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as 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… there are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might he engaging in such activities and that such ‘harm’ is not Constitutionally protective by the state. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures… the right to privacy in any event will necessarily have to go through a process of case-by-case development.”

But if no clear principle emerges out of the Court’s elucidation of the right, it was fairly unambiguous in stressing the importance of the right itself. Interestingly, it grounded the right within the context of the freedom struggle. “Our founding fathers,” it observed, “were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it.” (Para 30) The parallels to the American Fourth Amendment are striking here: in his historical analysis Akhil Amar tells us that the Fourth Amendment was meant precisely to avoid the various abuses of unreasonable searches and seizures that were common in England at the time.

The parallels with the United States become even more pronounced, however, when the Court examined the grounds for limiting the right to privacy. “Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest.” “Compelling public interest” is an interesting phrase, for two reasons. First, “public interest” is a ground for fundamental rights restrictions under Article 19 (see, e.g., Article 19(6)), but the text of the Article 19 restrictions do not use – and the Court, in interpreting them, has not held – that the public interest must be “compelling”. This suggests a stricter standard of review for an Article 21 privacy right violation than Article 19 violations. This is buttressed by the fact that in the same paragraph, the Court ended by observing: “even if it be assumed that Article 19(5) [restrictions upon the freedom of movement] does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.” The Court echoes the language of 19(5), and adds the word “compelling”. This surely cannot be an oversight.

More importantly – the compelling State interest is an American test, used often in equal protection cases and cases of discrimination, where “suspect classes” (such as race) are at issue. Because of the importance of the right at issue, the compelling state interest test goes hand-in-hand with another test: narrow tailoring. Narrow tailoring places a burden upon the State to demonstrate that its restriction is tailored in a manner that infringes the right as narrowest manner that is possible to achieve its goals. The statement of the rule may be found in the American Supreme Court case of Grutter v Bollinger:

“Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still constrained under equal protection clause in how it may pursue that end: the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.”

 To take an extremely trivial example that will illustrate the point: the State wants to ban hate speech against Dalits. It passes legislation that bans “all speech that disrespects Dalits.” This is not narrowly tailored, because while all hate speech against Dalits necessarily disrespects them, all speech that disrespects Dalits is not necessarily hate speech. It was possible for the government to pass legislation banning only hate speech against Dalits, one that would have infringed upon free speech more narrowly than the “disrespect law”, and still achieved its goals. The law is not narrowly tailored.

Crucially, then, the Court in Gobind seemed to implicitly accept the narrow-tailoring flip side of the compelling state interest coin. On the constitutionality of the Police Regulations itself, it upheld their constitutionality by reading them narrowly. Here is what the Court said:

“Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime – crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperiling safety of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.”

    But Regulation 855 did not refer to the gravity of the crime at all. Thus, the Court was able to uphold its constitutionality only by narrowing its scope in a manner that the State’s objective of securing public safety was met in a way that minimally infringed the right to privacy.

Therefore, whether the Gobind bench was aware of it or not, its holding incorporates into Indian constitutional law and the right to privacy, not just the compelling State interest test, but narrow tailoring as well. The implications for the CMS are obvious. Because with narrow tailoring, the State must demonstrate that bulk surveillance of all individuals, whether guilty or innocent, suspected of crimes or not suspected of crimes (whether reasonably or otherwise), possessing a past criminal record or not, speaking to each other of breaking up the government or breaking up a relationship – every bit of data must be collected to achieve the goal of maintaining public security, and that nothing narrower will suffice. Can the State demonstrate this? I do not think it can, but at the very least, it should be made to do so in open Court.

In the next post, we shall continue with the development of privacy law post-Gobind.

Surveillance and Privacy in India – I: Foundations

On previous occasions, we have discussed the ongoing litigation in ACLU v Clapper in the United States, a challenge to the constitutionality of the National Security Agency’s (NSA) bulk surveillance program. Recall that a short while after the initial Edward Snowden disclosures, The Hindu revealed the extent of domestic surveillance in India, under the aegis of the Central Monitoring System (CMS). The CMS (and what it does) is excellently summarized here. To put thing starkly and briefly:

“With the C.M.S., the government will get centralized access to all communications metadata and content traversing through all telecom networks in India. This means that the government can listen to all your calls, track a mobile phone and its user’s location, read all your text messages, personal e-mails and chat conversations. It can also see all your Google searches, Web site visits, usernames and passwords if your communications aren’t encrypted.”

The CMS is not sanctioned by parliamentary legislation. It also raises serious privacy concerns. In order to understand the constitutional implications, therefore, we need to investigate Indian privacy jurisprudence. In a series of posts, we plan to discuss that.

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Privacy is not mentioned in the Constitution. It plays no part in the Constituent Assembly Debates. The place of the right – if it exists – must therefore be located within the structure of the Constitution, as fleshed out by judicial decisions. The first case to address the issue was M. P. Sharma v Satish Chandra, in 1954. In that case, the Court upheld search and seizure in the following terms: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right. by some process of strained construction.” The right in question was 19(1)(f) – the right to property. Notice here that the Court did not reject a right to privacy altogether – it only rejected it in the context of searches and seizures for documents, the specific prohibition of the American Fourth Amendment (that has no analogue in India). This specific position, however, would not last too long, and was undermined by the very next case to consider this question, Kharak Singh.

In Kharak Singh v State of UP, the UP Police Regulations conferred surveillance power upon certain “history sheeters” – that is, those charged (though not necessarily convicted) of a crime. These surveillance powers included secret picketing of the suspect’s house, domiciliary visits at night, enquiries into his habits and associations, and reporting and verifying his movements. These were challenged on Article 19(1)(d) (freedom of movement) and Article 21 (personal liberty) grounds. It is the second ground that particularly concerns us.

As a preliminary matter, we may observe that the Regulations in question were administrative – that is, they did not constitute a “law”, passed by the legislature. This automatically ruled out a 19(2) – 19(6) defence, and a 21 “procedure established by law” defence – which were only applicable when the State made a law. The reason for this is obvious: fundamental rights are extremely important. If one is to limit them, then that judgment must be made by a competent legislature, acting through the proper, deliberative channels of lawmaking – and not by mere administrative or executive action. Consequently – and this is quite apart from the question of administrative/executive competence  – if the Police Regulations were found to violate Article 19 or Article 21, that made them ipso facto void, without the exceptions kicking in. (Paragraph 5)

It is also important to note one other thing: as a defence, it was expressly argued by the State that the police action was reasonable and in the interests of maintaining public order precisely because it was “directed only against those who were on proper grounds suspected to be of proved anti-social habits and tendencies and on whom it was necessary to impose some restraints for the protection of society.” The Court agreed, observing that this would have “an overwhelming and even decisive weight in establishing that the classification was rational and that the restrictions were reasonable and designed to preserve public order by suitable preventive action” – if there had been a law in the first place, which there wasn’t. Thus, this issue itself was hypothetical, but what is crucial to note is that the State argued – and the Court endorsed – the basic idea that what makes surveillance reasonable under Article 19 is the very fact that it is targeted – targeted at individuals who are specifically suspected of being a threat to society because of a history of criminality.

Let us now move to the merits. The Court upheld secret picketing on the ground that it could not affect the petitioner’s freedom of movement since it was, well secret – and what you don’t know, apparently, cannot hurt you. What the Court found fault with was the intrusion into the petitioner’s dwelling, and knocking at his door late at night to wake him up. The finding required the Court to interpret the meaning of the term “personal liberty” in Article 21. By contrasting the very specific rights listed in Article 21, the Court held that:

“Is then the word “personal liberty” to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man’s home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to the words of the preamble to the Constitution that it is designed to “assure the dignity of the individual” and therefore of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as “personal liberty” having to be construed in a reasonable manner and to be attributed that these which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories.” (Paragraph 16)

A few important observations need to be made about this paragraph. The first is that it immediately follows the Court’s examination of the American Fifth and Fourteenth Amendments, with their guarantees of “life, liberty and property…” and is, in turn, followed by the Court’s examination of the American Fourth Amendment, which guarantees the protection of a person’s houses, papers, effects etc from unreasonable searches and seizures. The Court’s engagement with the Fourth Amendment is ambiguous. It admits that “our Constitution contains no like guarantee…”, but holds that nonetheless “these extracts [from the 1949 case, Wolf v Colorado] would show that an unauthorised intrusion into a person’s home and the disturbance caused to him thereby, is as it were the violation of a common law right of a man – an ultimate essential of ordered liberty”, thus tying its own holding in some way to the American Fourth Amendment jurisprudence. But here’s the crucial thing: at this point, American Fourth Amendment jurisprudence was propertarian based – that is, the Fourth Amendment was understood to codify – with added protection – the common law of trespass, whereby a man’s property was held sacrosanct, and not open to be trespassed against. Four years later, in 1967, in Katz, the Supreme Court would shift its own jurisprudence, to holding that the Fourth Amendment protected zones where persons had a “reasonable expectation of privacy”, as opposed to simply protecting listed items of property (homes, papers, effects etc). Kharak Singh was handed down before Katz. Yet the quoted paragraph expressly shows that the Court anticipated Katz, and in expressly grounding the Article 21 personal liberty right within the meaning of dignity, utterly rejected the propertarian-tresspass foundations that it might have had. To use a phrase invoked by later Courts – in this proto-privacy case, the Court already set the tone by holding it to attach to persons, not places.

While effectively finding a right to privacy in the Constitution, the Court expressly declined to frame it that way. In examining police action which involved tracking a person’s location, association and movements, the Court upheld it, holding that “the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

 The “therefore” is crucial. Although not expressly, the Court virtually holds, in terms, that tracking location, association and movements does violate privacy, and only finds that constitutional because there is no guaranteed right to privacy within the Constitution. Yet.

In his partly concurring and partly dissenting opinion, Subba Rao J. went one further, by holding that the idea of privacy was, in fact, contained within the meaning of Article 21: “it is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”  Privacy he defined as the right to “be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.” On this ground, he held all the surveillance measures unconstitutional.

Justice Subba Rao’s opinion also explored a proto-version of the chilling effect. Placing specific attention upon the word “freely” contained within 19(1)(d)’s guarantee of free movment, Justice Subba Rao went specifically against the majority, and observed:

“The freedom of movement in clause (d) therefore must be a movement in a free country, i.e., in a country where he can do whatever he likes, speak to whomsoever he wants, meet people of his own choice without any apprehension, subject of course to the law of social control. The petitioner under the shadow of surveillance is certainly deprived of this freedom. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce engender inhibitions in him and he cannot act freely as he would like to do. We would, therefore, hold that the entire Regulation 236 offends also Art. 19(1)(d) of the Constitution.”

 This early case, therefore, has all the aspects that plague the CMS today. What to do with administrative action that does not have the sanction of law? What role does targeting play in reasonableness – assuming there is a law? What is the philosophical basis for the implicit right to privacy within the meaning of Article 21’s guarantee of personal liberty? And is the chilling effect a valid constitutional concern?

We shall continue with the development of the jurisprudence in the next post.