Right to Privacy: Summary of Arguments Made by the Petitioners on Day 2 of the Hearings

Day 2: 

The bench comprised of 9 judges sitting from left to right in the following order

• Sanjay Kishan Kaul J.
• A.M. Sapre J.
• R.K. Agarwal J.
• Jasti Chelameshwar J.
• J.S. Kehar J.
• S.A. Bobde J.
• R.F. Nariman J.
• Dhananjay Chandrachud J.
• Navin Sinha J.

10:30 AM: Arguments were continued by Sr. Advocate Mr.Arvind Datar from where he let off the previous day

• The three types of privacy that an individual can command are as follows
• Physical privacy: Protection against tangible and intangible invasion of private space.
• Informational privacy: An individual's control over the dissemination of his private information.
• Decisional privacy: Protection of an individual's autonomy over fundamental personal choices.
• Interrupted by Dhananjay Chandrachud J. (DyC) with the following question 

DyC: For us to claim the protection from invasion of privacy from the state is one thing. But for a horizontal right like Right to Privacy can the same be enforced against private entities?

Datar: The remedy in that case is of damages.

DyC: But, the state has equal obligation for protection even against violations by a private player. Say for example its role might by to frame appropriate rules and regulations to prevent such violations from happening.

Datar: Yes! I completely agree. The state is obligated to play its role.

DyC: But the obligation and the entailing burden on the state may not be equal in all such horizontal rights.

11:00 AM: Mr.Datar rested his arguments and the stage was taken by Sr.Adv. Mr.Anand Grover

• Maneka Gandhi has overrules Kharak Singh, so there is no need to get into that discussion.
• The UOI has made a primary argument that the Right to Privacy is not present within the constitution in any form. If at all it is granted as a common law right. I say that English Common Law does not recognise the right. It is imported by the American Jurisprudence.
• It is baffling that we are still debating upon the very existence of a right as essential as this after the passage of such a long time.
• Such form of human rights is a part of the obligation that India has under the international instruments that it has signed. (Cites Article 17 of International Covenant on Civil and Political Rights).
• Sr. Adv. Mr.Gopal Subramanium (GS) interrupts: The recent Manipur judgement (Extra Judl. Exec. Victims Families Association & Anr. Vs. Union of India & Ors. W.P. Crl. No.129/2012) delivered by M.B. Lokur J. discusses this.
• It is the obligation of the state to implement and comply with such international instruments if it is not against any of the domestic law. It is in pursuance of such obligation that several acts like Protection of Human Rights Act, 1993 were enacted. In fact, Section 12 (f) of the Act obligates the National Human Rights Commission to study treaties and other international instruments on human rights to make suitable recommendations for their effective implementation. Interrupted by Rohinton F. Nariman J. (RFN)

RFN: The court can issue a mandamus to the government to enforce the commitments of the nation under such international instruments.

GS: Yes! It has happened in the past.

• If there is no domestic law and there is international law then the international law will prevail. This has been enunciated in the Vishaka Judgement by the Supreme Court itself.

RFN: Then we can say that the 8 judge bench in the M.P.Sharma case is outrightly wrong since it was delivered in the face of international instruments such as Universal Declaration of Human Rights (UDHR).

Grover: Also it does not have the ratio decidendi. Privacy was never an issue before that bench.

• Dignity is always associated with privacy. Interrupted by DyC: "Then the NALSA judgement would become vulnerable". (Mr.Grover enters into an animated discussion about the NALSA judgement by tracing out the dignity and privacy aspects of the issues involved in that case).
• The present bench should not precisely define the Right to Privacy in its totality. It may trace its contours to provide a general idea and leave the rest to be decided on case to case basis. 
• Cites Govind Vs. State of Madhya Pradesh 1975 SCR (3) 946. DyC: This judgement by Mathews J. is a rather narrow conception of privacy. The issue was not entertained in its full context. Only now the issue is entertained in full fledged manner.
• Tests that can be used differs from the Article under which the issue of privacy arises. It can either arise in Art.19 or 21. So the issue must be adjudicated and tested in the appropriate context. Several of such tests can be 
• Compelling state interest test.
• Proportionality test.
• Least Restrictive test.
• Legitimacy test.
• Privacy would also entail the right to identity and right to remain anonymous. DyC cites several practical examples where the issues of privacy and state necessity are encountered.

In applying for a passport for an adopted child can the authority compel to disclose the details of biological parents. Also in case of a single mother can there be any compulsion to disclose the identity of the father? To what extent such rights can be claimed, if at all there is any?

Suppose the government maintains a register about all people who has committed a crime. The violation of the Right to Privacy is not merely of the maintaining the register. There will be one if such an information is used to profile individuals and their propensity to commit crime. 

Ultimately, the important issue is that the identity should not be used to stigmatise the person. (Cites NALSA judgement.)

• Cites Right to Privacy and bodily integrity of a mentally unstable woman and a victim of rape to give birth to a child. (Suchita Srivastava Vs. Chandigarh Administration)
• There is a right to privacy. But it should not be defined now. It should be on case to case basis. It should be indicative (Sr. Adv. GS whispering in Grover's ears: Let us not go into the merits of Aadhaar case now. Grover nods in agreement).
• The Right to Privacy is all pervading, the test for which will depend on the right in which it manifests itself.

1:50 PM: Arguments rested by Mr.Anand Grover and the stage has been taken by Sr. Adv. Sajjan Poovayya (SjP).

• Cites United States Vs. Jones (2012). DyC: Please tell us about consent, informed consent and its entailing effects.

DyC: If any surveillance is a transgression of Right to Privacy, then what about the legitimate requirements of the state such as a person being put under surveillance under alleges terrorist activities?

SjP: Then it must be done under the procedure established by law.

Chelameshwar: What is the objection on mere collection of data?

SjP: Given the advancement in technology the collection of data and its processing happens near simultaneously due to artificial intelligence. The possibilities of abuse is large. Moreover, in case of a private player I consent for such a collection on a case to case basis on a private contract to avail its services. That is not the case with the state.

• Secrecy is not a prerequisite for protection under Right to Privacy. Even the information in public domain is entitled to such a protection.
• The state is not merely obligated to protect the physical being of its citizens, in modern times it is to protect their digital identity as well.
• Cites the various instances where the legislature has already acknowledged the existence of Right to Privacy.
• Section 5(2) of Telegraph Act.
• Section 8 (j) of RTI Act.

RFN: What happened to the privacy bill?

3:30 PM: Arguments rested by Mr.Poovayya. The stage was taken by Ms.Meenakshi Arora

• Cites Wolf Vs. Colorado.
• Rights there were already there before the Constitution came into being were inhered into the Constitution. Just because it is not stated there does not mean that it does not exist. A similar argument was taken by H.R. Khanna J. in A.D.M.Jabalpur case (Habaeus Corpus Case).
• Cites Row Vs. Wade.

04:00 PM: Adjourned. Hearing of Respondents arguments to continue on Tuesday.

Book Review: Gandhi Before India

The history of mankind, if one skims through, is merely a repetitive record of the violence that one perpetrates upon the other. Each era is punctuated with the leaders who defined the course of such events. The garb of nationalism and other paraphernalia associated with it are merely the tools in the hands of these leaders to gather the masses behind them. It was not until the arrival of Gandhi that morality of neither those tools nor the end that is sought to be achieved mattered much. His methods questioned the very basis upon which power was exercised by one over the other. The history of this man is the history of the mankind and its self-discovery of its moral compass. The invention by Gandhi of his methods did not happen over a single day or over a single incident. It was a gradual process of evolution and a self-discovery, a most important part of which happened in the continent of Africa. Mind that this transformation is from being an abject failure as a lawyer in his homeland to being an undisputed leader of the civil resistance is the story that was carried out of Africa. The man that we know as Gandhi in India was discovered by Gandhi himself only in this sojourn. But this history is a relatively immaterial happening for most of his biographers were blithe loathsome to dedicate time and space to this part of his story. The narrative importance of this part of his life can be better understood when we see that Gandhi himself sees South Africa as the place where he discovered the means to achieve the ultimate end of emancipation for his homeland from the colonial rule. It is a startling journey of a shy man from Kathiawar who cannot even deliver a speech on his own without any assistance to an undisputed leader of Indians. The author himself recognises the narrative importance of this part of the story in the early chapters of this book. The success of this book, more than anything else, depends largely upon the narrative fidelity of the author in taking us through the historical forces of causation that made the man that we saw as 'Mahatma' in India.

Of the Self-Discovery and the Horizons Unraveled

There are not many figures in the world history who has been subject to as much analysis as Gandhi has been. How much ever revered, he was still not without his own eccentricities and blemishes. In fact, he had an unheard of audacity to criticise certain such blemishes on his own in his autobiography. But a third man's account of such how he developed such nuances, which made the man that we know of, is a void that the author seeks to fill in, especially of the time that he spent in Africa. It was an evolutionary process in which his ideals were shaped by his interactions and experiences in one of the most racially prejudiced governments of the world. Of all, his relationship with the native Africans best demonstrates this. He was not free from the prevailing prejudice against the native Africans. This was even overtly visible in the actions of the Gandhi. While he was arguing staunchly for the rights of Indians in Africa and against the racially motivated laws he still abided by the prevailing racial hierarchy. Whites at the top and blacks at the bottom with the Indians floating somewhere in between. Rule be pleaded for equal treatment of Indians, he tried to persuade the authorities by arguing that let not the Indians be treated in the way Africans (Kaffirs) are treated. His petitions to the government to relax some rules specifically targeting the Indians shows a certain degree of apologetic approach that he had in his early days towards the imperial rule. Though justified as an incrementalist approach that he wanted to have in a political struggle, this reminds us again of the Gandhi that we are yet to see. However, what baffles one's mind is when such prejudices, if seen in today's terms, clearly comes in conflict with his ability as a leader. The entry into Transvaal in protest against the racial laws and the demands for equality was only sought for 'educated' and 'cultured' Indians.The struggle that he spearheaded is demonstrative of the very conception of civil liberties that we happen to have today. The recurring use of the qualifiers like 'cultured' and 'educated' to proclaim civil rights just shows that the concept of equality as we see it today was not even thought of then. Even Gandhi himself and his ideas were sequestered to this, confining his activism, at least until then, within these parochial notions of equality. It is baffling by today's standards how he was able to mobilise people cutting across populace regardless of the background. In fact, in the last stages of his struggle for political rights in Africa drew a majority of its support from the lower strata of the Indian populace in Africa, like the indentured labourers. It all, however, ended up as an educative experience for him shaping both him and his ideology with which he landed in India. Rather than dictating outlook towards the world, these encounters along with the extended friendship that he had with people from other races enriched his ideas and provided necessary inputs to forge what he ultimately called as 'Satyagraha'. Either consciously or unconsciously he expanded the horizon of his political views from being a conservative Gujarati baniya to a political leader with worldly views in this two decades worth journey.

Of Gandhi- The Private Man 

All through the book one can see two distinctive personalities of the man. Gandhi- The political leader and Gandhi- The unsuitable family man. Though it has always been my principle not to criticise someone on their actions in personal relationships, I must make a special exception for the likes of Gandhi. I deduce reason thus. I find that all his political proclamations were backed by a strong sense of personal integrity in doing what he says and ask others to do. His political reasoning was entirely built upon his moral construct of self and the discipline in leading a principled life.  It is for this very reason he was able to connect with the masses, unlike any other leader until then. He eased himself into the blurry lines that which political leaders like him unconsciously drew between them and the people that they seek to lead by only preaching what he did. There existed no dividing line between his public and private life when he expected even the members of his family to participate in what he did politically. He was unrelenting in his acts of self-discipline. However, this virtuosity of the man cost him much in his interpersonal relationships. Perhaps he himself realised this, evident from his communications to Kasturba (his wife) where at places he indicates the importance of public work in his life and his inability to dedicate time for the family as much as she would want him to. For a person as important as him it is understandable, however, the real problem arose when he imposed his discipline upon other members around him and it consisted of people outside his family as well. Apart from the relatively difficult relationship that he had with Kasturba the constant struggle that he had with his sons would best demonstrate this. Every single letter that he wrote to his sons reeks of unwanted authoritarian language. He expected them to follow everything he wanted them to till the end. He never seems to have left any legitimate choices for them to make or to discover things for themselves. It would sound paradoxical if one were to see that Gandhi himself was made to be the man that he is because he had the freedom to exercise such choices. If one were to see his history it is the very freedom that he denied his sons which provided him with the means to see the world in his own terms. Had his father been alive, he sure would not have allowed him to travel to London to become a barrister. It is in London that he was exposed to the experiences which came in handy in his ascension to the peak. With his sons, to the contrary, he curtailed any and every means for them explore their abilities in their own terms. His letters are always filled with his exasperation on his unmet expectations, which went even to the extent of asking them to control their carnal instincts. Though a successful leader, he is an abject failure as a father.
His relationship with his wife if seen through the lens of modern standards of women's rights and emancipation Gandhi is an unsurprising failure. All through it is an uneasy civil relationship that they established amongst themselves. The physical attraction played role in their young age (regardless of his later day self-criticism on his inability to be at his father's side on his death due to his carnal desires) but the later day compulsions and Gandhi's exposure to the outside world changed the dynamics of the relationship between them. With his increasing proclivity towards public work his expectations from his wife changed. Being an uneducated and conservative woman, Kasturba at the best could do what he asked her to without any consideration her own sense of self and independent choices. All through, her part in the story of Gandhi is merely a devoted wife standing with her husband's choices, an outcrop of conservative Indian ideals thrust upon a woman. Her sojourn into the gaol in Africa and other participation seems purely out of this devotion, not out of her own intellectual exercise. Gandhi's unilateral decision to practice celibacy is one such decision. Though Kasturba accepted unequivocally it was out of the fact that she did not want to bear any more children. All this is a result his inability to see past his perceptions about the individual that Kasturba was. He grew comfortable in a mechanical role of a 'provider' for his family. One of Gandhi's close friend Millie Polak, who lived in the same house as Gandhis along with her husband, conversation with Gandhi explains this clearly. After being with Gandhi family for a while she told Gandhi that 'the East has made the woman the subject of man, she seems to possess no individual life'. Gandhi characteristically replied that 'The East has given her a position of worship' and went on to quote the story of Satyavan-Savitri. This deification is dangerous reasoning that has been cast upon numerous social institutions of oppression to legitimise it and Gandhi continued to use this reasoning even in the many other beliefs of his own to justify his claims.
Even more unique is the friendship that he cultivated around him. As a person, from what we can see through the history, he might even come across as incorrigible and impracticable due to his eccentricities. But if we want to understand what Gandhi was it is those eccentric reasonings that he professed in his personal life which will give us a peek into it. In fact, his friendship to a great extent grew because of people getting attracted to these eccentricities of his. There was a presence of an overwhelming attraction that transcended such nuances that made the man. Gandhi reciprocally was made to be what he was only with their influence both intellectually and in kind. His friends willingly put themselves in the ways of hardship since they unconditionally believed in what Gandhi did. The strongly knit circle of friends that he fostered in Africa cannot be treated in a conventional sense. They got close to him out of sheer attraction for the principles that he stood for, in that way they were early 'followers' of Gandhian principles.  The very experiment of the Tolstoy farm is an example of how people got influenced by him put themselves to the hardship by willingly abandoning the creature comforts that the modern life offered them.
The most notable of his friends during his time in South Africa was Henry Polak, Hermann Kallenbach and Paranjivan Mehta. Both Polak and Kallenbach attached themselves to Gandhi out of sheer attraction to the principles that he espoused and in fact dedicated their life to those principles. They played a dominant role in Gandhi's political ascension in Africa. Paranjivan Mehta saw Gandhi as the saviour who would emancipate India from its colonial rule. He predicted a greater role that would be played by him in the forthcoming political struggle and wanted him to return to India at the earliest possible. In fact, it was him, who called Gandhi a 'Mahatma' for the first time, not Tagore. He went to great extent to help Gandhi in all mean he could, especially in monetary terms.

Of the Man of Eccentricities

The relationship that Gandhi fostered with people around him had a peculiar flavour to it. Just as it is seen with the relationship that he established with the members of his family he might come across as an eccentric individual who is difficult to deal with in a conventional sense. His beliefs and notions were archaic and are not always grounded in science and logic. Digest this statement of Gandhi, about modern medical facilities, if possible: "modern hospitals perpetuate vice, misery and degradation; had there been no hospitals for cure of venereal diseases, there would be less sexual vice amongst us". I can only imagine the negative impact that a thought which is even remotely influenced by this. He was unnecessarily obsessed with the sexual choices of individuals around him. In many communications that he made with his sons and cousins, he chose to enter into a diatribe on celibacy.

Of Gandhi- The Idea

We often tend to forget that the journey is as important as the destination. Mankind as a whole reached a place where it had to do a moral reevaluation of the progress that it made up until then. It required the directions to lead it somewhere where it can create a just word. It came in the form of Gandhi. Just as Victor Hugo said "You can resist an invading army; you cannot resist an idea whose time has come". Gandhi was an idea whose time had come. He questioned the morality of things that our world took for granted until then. More than the man himself, it is his principles that has endured the passage of time and it is to stay relevant for the future too. We are living in a period where the sense of brotherhood amongst fellow humans has been overtaken by parochial considerations of identity. It is for us to rediscover for our own sake the man that was 'Gandhi'.
A picture is sometimes not a product of an painter's mind. It there present somewhere, to be discovered by the painter. The broad strokes of his brush brings it to life for us to see. Ramchandra Guha has painted this for us to see something as important this. By providing a deep insight into the life the man Ramchandra Guha has done a great service for us all to read. This book is a must read for all who wants to know the man that was Gandhi.