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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 Bankin 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.

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 individuals 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.

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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.

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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.

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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.

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 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.

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