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Human Rights Supreme Court of India

Has the Union made contradictory arguments on the right to privacy in the Aadhar and criminal defamation cases?

NoticeAndStayAdityaVerma_SupremeCourtcolumnTwo cases that the Supreme Court has been hearing during the last few weeks do not have anything to do with each other at first glance – the legality of the Aadhaar card scheme (“the Aadhaar case” – including Writ Petition (C) No 494 of 2012) and the constitutionality of the law of criminal defamation (the “criminal defamation case” – including Writ Petition (Crl) No 184 of 2014). Both are complex cases but my focus is on the contradiction about the right to privacy arising from the arguments made on behalf of the Union in both these cases.

The Aadhaar case

In the Aadhaar case, the Union has argued that the right to privacy in India is not a fundamental right. On August 11, 2015, a three-judge bench has directed the registry to place the Aadhaar case before the Chief Justice of India so that a larger bench (of at least five judges) can hear it. The order of the three-judge bench records the submission on behalf of the Union as follows:

 

…in view of the judgments of this Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful. Further… in a catena of decisions of this Court rendered subsequently, this Court referred to “right to privacy”, contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

While we are not concerned here with whether the right to privacy is a fundamental right in India, it is fair to say that if it were to be held not to be a fundamental right, it would be difficult to justify the existence of a right to privacy in any sense in Indian law, unless Parliament enacted legislation to create such a right by statute. The right to privacy is not a right at common law, which goes also to suggest that there is no common law tort that arises out of a violation of privacy per se.

We will not analyse the various judgments of the Supreme Court on this issue here, but it is safe to assume that even the ‘tortious’ right to privacy in India has found life essentially as a corollary of the argument that the right to privacy is a fundamental right. If it is found not to be a fundamental right, there would be no legal basis for the ‘tortious’ right to privacy to survive.

The criminal defamation case

In the criminal defamation case, it has been argued on behalf of the Union that one of the justifications for the law of criminal defamation (Sections 499 and 500 of the Indian Penal Code, 1860) is that it deters undesirable intrusion into a person’s private life. As this report indicates:

The Supreme Court of India

The Supreme Court of India

The Centre on Thursday told the Supreme Court that live-in relationships should be seen as an “acceptable norm,” and pointed to how reputations of public personalities are often sullied in public because someone pried into their private life… What a public figure does in the evening at his home, I don’t think it would serve any public good even if it is the truth. Public figure is known for discharge of public functions, actions and transaction of business. This [live-in relationship] is matter of private life. There is distinction between conduct in private and public life.

Again, while we are not concerned here with whether the law of criminal defamation is constitutionally valid, it is fair to say that this particular justification for it strongly hints at protecting a person’s privacy. The Supreme Court may decide that there are other justifications for the law of criminal defamation, but it would be difficult to argue that one of those justifications is the protection of a person’s privacy, unless it also accepted that that person has a right to privacy in the first place.

The contradiction

So, is there, or isn’t there a right to privacy in India? In the Aadhaar case, the Union’s argument is that there isn’t. However, in the criminal defamation case, the Union’s argument assumes that there is. It will be interesting to see how the Supreme Court eventually resolves this question, which arises independently in each case.

Bear in mind that it is theoretically possible for it to be decided, without inconsistency, that the right to privacy is not a fundamental right in India – indeed, it is not a right at all – and at the same time, to uphold the constitutional validity of the law of criminal defamation in India, as long as the protection of a person’s privacy is not one of the justifications for that law. Equally, it can be said without inconsistency that the right to privacy is a fundamental right in India, but the law of criminal defamation is constitutionally unsound, despite one of its purposes being the protection of a person’s privacy.

Of course, there is no fear of contradiction in the law as far as the right to privacy is concerned if it is held that:

– the right to privacy is not a fundamental right, and the law of criminal defamation is constitutionally invalid, or

– conversely, the right to privacy is a fundamental right, and the law of criminal defamation is found to be constitutionally valid

Some readers must be thinking, “What about privacy and the restriction on access to internet pornography?” All of this is for the Supreme Court to iron out. Rather ironically, privacy seems to be everywhere these days!

(Aditya Verma is an advocate based in New Delhi.)  

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Human Rights Supreme Court of India

On Shreya Singhal: Section 66A is too broad, vague, and will chill free speech

GautamBhatia_SupremeCourtofIndiajpgIn the second half of December 2014, the Supreme Court began to hear a series of challenges to various provisions of the Information Technology Act of 2008 (“IT Act”). Hearings will commence again when the Court reopens in January after the winter break. The batch of petitions, clubbed under Shreya Singhal v. Union of India, impugn – inter alia – the constitutional validity of Section 66A of the IT Act.

Section 66A has attained a degree of notoriety in recent times, having been used to arrest people for posting (and liking) Facebook comments, for critical political speech, and so on. Section 66A is largely borrowed from the English Communications Act (the scope of which has been severely curtailed after allegations of abuse), and was originally intended to tackle spam and online harassment. It hardly bears repeating that its implementation has gone far beyond its objective. Beyond poor implementation, however, there is a strong case for the Court to hold at least part of Section 66A unconstitutional, on the ground that it violates the freedom of speech guarantee under Article 19(1)(a) of the Constitution.

Among other things, Section 66A criminalises the sending, by a computer resource or a communication device, any information that is “grossly offensive” or has a “menacing character” (S. 66A(a)), as well as the sending of “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience.” The components of the offence, therefore, include online speech that is “grossly offensive”, “menacing”, or causes “annoyance” or “inconvenience”.

Legitimate restrictions permitted on the fundamental right in Article 19(1)(a)

The State’s authority to legitimately restrict speech can be sourced to Article 19(2) of the Constitution, which allows for the State to impose, by law, “reasonable restrictions on the freedom of speech in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” S. 66A’s restrictions might be connected with three of these concepts: public order, decency or morality, and defamation.

In a series of cases, the Supreme Court has made it clear that the connection between “public order” and a free speech restriction ought to be proximate, like that of a “spark in a powder keg”, and not far-fetched or remote. Clearly, while certain forms of offensive or menacing speech might, at some point, lead to a public order disturbance, the connection is anything but proximate. Similarly, the “decency and morality” prong has been invoked to deal with cases of obscenity, where the offending work appeals solely to the prurient interest, as seen from the point of view of the reasonable, strong-minded person. And lastly, the ingredients of defamation are highly specific, and much narrower than causing offence or annoyance – they are limited to lowering the reputation of the plaintiff in society (subject to certain defences).

Over-breadth and disproportionate restrictions

IMediaLawst is therefore clear that certain terms of Section 66A suffer from the vice of “overbreadth”, that is, they authorise the restriction of expression that the government is entitled to prohibit, as well as that which it is not. In Chintaman Rao v. State of Madhya Pradesh, the Supreme Court, while striking down certain restrictions on agricultural labour under Article 19(1)(g) of the Constitution, held that “the law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly void.” In other words, as far as fundamental rights are concerned, over-breadth is constitutionally fatal to a statute. This conclusion is further buttressed by the fact that in State of Madras v. V.G. Row, the Supreme Court also held that a “reasonable restriction” under Articles 19(2) to (6) would have to satisfy the requirements of proportionality: “the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.” Proportionality and over-breadth are closely linked: if a statute proscribes conduct that is much broader than what is permitted under Article 19(2), on the ground that there is some – tenuous – connection between the two, there is good reason to argue that the restriction is disproportionate.

Vagueness

In addition to over-breadth, the provisions of Section 66A suffer from an additional problem: that of vagueness. “Menacing”, “annoyance”, “inconvenience” and “grossly offensive” are all highly subjective, and open to numerous varying interpretations depending upon individual and diverse standpoints. Their scope and boundary are both large and ill defined. Consequently, they create a zone of uncertainty for Internet users. What kind of speech might land you in trouble? It is hard to tell.

Vagueness is constitutionally problematic. In Kartar Singh v. State of Punjab, the Supreme Court – citing American precedent – observed that “it is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values… laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Thus, the twin problems of uncertainty and impermissible delegation to the executive, are inextricably connected with vague statutes.

Censorship
Image is from Tyler Menezes’ photostream on Flickr. CC BY-SA 2.0.

Vague and over-broad statutes are especially problematic when it comes to free speech, because of the chilling effect that they cast upon speech. As the Court put it in Kartar Singh, “uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked”.” When faced with uncertain, speech-restricting statutes, citizens are likely to self-censor, in order to ensure that they steer well clear of the prohibited line.

In the Shreya Singhal petitions, the Supreme Court will be faced with the choice of striking down Section 66A, or reading it down and (perhaps) issuing guidelines aimed at checking abuse. There is no doubt that the objectives of preventing scam and protecting Internet users against cyber-harassment and online bullying are important. But there are other parts of Section 66 that can be used to curtail such activities. If the Court is not minded to strike down Section 66A in its entirety, it ought to at least sever the words that have the greatest and most unbounded catchment area, and are most prone to abuse, and excise them from the statute.

(Gautam Bhatia blogs at Indian Constitutional Law and Philosophy.)

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Human Rights Supreme Court of India

Conciliation of the coerced!

Today would have been as good a day as any to hear the verdict of the Allahabad High Court in the Ayodhya title suit, writes Shadan Farasat.

Can two parties, who have been unable to come to a settlement for over 60 years, come to a settlement through an intervention of the Supreme Court? Two judges of the Supreme Court could not agree on an answer yesterday when they heard a Special Leave Petition to stay the impending decision of the Allahabad High Court on the title suit over the land where the Babri Masjid stood until 1992. The court eventually passed an order that abides with the Supreme Court’s tradition of issuing notice when two judges disagree on a grant of notice. The Court issued notice and granted a stay on delivery of judgment by the Allahabad High Court until September 28, 2010, when the matter is listed next before the Supreme Court. The Attorney General of India has been requested to be present in the Court for the next hearing.

Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.
Rear view of the Babri mosque before it was destroyed in 1992. Photograph by Shaid Khan.

But first, some background information. The Babri Masjid, as it was called, was built by Mir Baqi in Ayodhya in 1528 on the orders of Emperor Babur. It stood there as such until December 6, 1992 when it was demolished. On January 7, 1993 the President of India issued the Acquisition of Certain Area at Ayodhya Ordinance through which 67.703 acres of the Ram Janambhoomi-Babri Masjid Complex, as it came to be called by then, was acquired by the Central Government. Existing litigation in respect of this area abated. However, the President of India, under a reference under Article 143 of the Constitution, sought the opinion of the Supreme Court on whether such action on behalf of the government would be constitutional. In Ismail Faruqui v. Union of India, AIR 1995 SC 605, a five-judge bench of the Supreme Court held that this action of the Central Government was unconstitutional to the extent it abated all pending legal disputes before courts and referred the matter to the Allahabad High Court for decision on the multiple title suits, some of which had been pending since 1949. The Supreme Court has now stayed this judgment of the Allahabad High Court until September 28, 2010.

The odds against the petitioner before the Supreme Court were indeed high. A similar request had been made before the Allahabad High Court last week, and the majority had rejected it, with costs! If the High Court does not give the decision by October 1, one of the judges, Justice D.V. Sharma, will retire and the matter will have to be heard in its entirety once again by a reconstituted bench. The new decision will take a few more years. The Allahabad High Court had already tried mediation and conciliation, but failed. The petitioner, who is one of the twenty-seven parties in the suit, also had its bona fides in question, because it had failed to actively participate in the proceedings before the High Court. Finally and most importantly, none of the other parties to the suit were willing to consider a settlement at this belated stage and political settlement by various religious leaders and as many as three former prime ministers had also failed.

So what purpose did one of the judges of the Supreme Court see in coercing the parties into another (potentially) fruitless mediation process? The only answer is the resolution – or postponement – of possible law and order problems on the delivery of the judgment, if the judgment is seen as favouring one community over the other. However, unlike in 1992, the Central Government has already taken adequate measures, and all political parties and religious groups have advised restraint and promised to abide solely by the legal process. The mood of the country is also very different from 1992. So today would have been as good a day as any other to pass this judgment. While the Allahabad High Court decision would not have resolved all the disputes in respect of the issue, particularly relating to the emotions that may be attached to it, it would have been a step in that direction. By staying the decision of the Allahabad High Court, the Supreme Court may inadvertently be providing fodder to those who want to milk the issue politically in the future. While the Supreme Court does some more thinking until September 28, the country awaits anxiously.