Privacy, Publicity and Media Mistakes

Tis’ one of the most enduring paradoxes. That our right to privacy verdict became one of the most “public” ever!

The sheer number of public comments that sprung up in its wake is testament to this sentiment. At last count, there appeared to be more than 300 articles and commentaries on this judgment alone; all within a span of a month or so!

In fact, just a week or so back, we at IDIA did a full panel on privacy at our latest annual conference on “Creativity and the Law” (documented extensively in this Livelaw piece here).

The Death Knell of India’s Dred Scott?

Am sure there’ll be many more reviews of this seminal judgment in the years to come. For it is a remarkable judgement, not just for its comprehensive sweep of all things “privacy” related, starting with the influential 1890 Harvard law review piece advocating such a right (albeit a common law right); but also for driving a deep stake into the heart of two dreadful decisions of the past. The first being the infamous ADM Jabalpur case (upholding the suspension of fundamental rights during Indira Gandhi’s emergency) and the second, the bigoted ruling in Koushal (upholding the criminalisation of homosexuality).

Our Supreme court judges dealt quite a deadly blow to these dreadful decisions; and I use the “dread’ deliberately, as both these would qualify as India’s “Dred Scott” moments! One lawyer in particular played a significant role in swinging the court towards purging this problematic past.

I speak of Gopal Sankaranarayanan who appeared on behalf of the Center for Civil Society (CCS). Unfortunately, our media moguls mischaracterised his position on privacy. Particularly our merry band of tweeters who bring us the latest from the courtroom. They pitched him as a lawyer wholly opposed to the Fundamental Right to Privacy, whereas his arguments were a lot more nuanced on this count.

See this article here which states thus:

“Toeing Dwivedi’s line, Arghya Sengupta and Gopal Sankaranarayanan, representing the Haryana government and the TRAI and the Centre for Civil Society, an NGO, said right to privacy cannot be declared as a fundamental right. The two advocates, who were praised for their argument by the court, submitted that the ingredients of right to privacy were embedded in other rights like the right to personal liberty.”

CCS/Gopal Arguments on Privacy

In fact, both Gopal and I were victims of such mischaracterisation in the Novartis case as well, where he was my counsel. Despite making our position on the case public, some of the counsels/parties assumed that we were supporting Novartis’ brief that the cancer patent be upheld as valid. So much so, that one even walked upto Gopal and accused him of having taken Novartis’ side in the dispute, simply because he was sitting behind Novartis’ counsel! An incident I recounted in an earlier post.

And this despite the fact that our written submissions (which are now available on SpicyIP thanks to SCC) made it more than amply clear in its very first sentence that Novartis ought not to be granted a patent, since it flunked the threshold bar set by section 3(d).

Anyway, back to the mis-characterization of the privacy argument advanced by the Centre for Civil Society (CCS) and their counsel, Gopal. For those interested, their written submissions are available in this Livelaw piece here. Based on my reading of this submission and an extensive discussion with Gopal, here are my thoughts:

1. As suggested by the media pieces, Gopal never argued that there is no basis for a fundamental right to privacy under the Constitution. Far from it! In fact, the CCS submission clearly states thus: “WITHOUT PREJUDICE to the correctness of the ruling in Sharma & Kharak, there is no doubt that the ‘felt need of the times’ is to have a fundamental right to privacy.”
2. The argument advanced by CCS and Gopal was a slightly nuanced one: namely that the earlier cases (Kharak Singh, MP Sharma etc) suggest that there was no fundamental right to privacy. And if there is to be such a right, then a larger bench must be constituted to overrule the earlier problematic precedents. I extract from his brief: “The Supreme Court has itself stated that there is no fundamental right to privacy, and thus manacled, it has no elbow room to now proceed against binding precedent”. This is why the reference to a larger bench was absolutely necessary. But once a larger bench was constituted, the existence or absence of a right to privacy under earlier precedent (Kharak Singh, MP Sharma etc) does not really matter, since a larger bench is not bound by it.
3. It could well be that Gopal’s position was mischaracterized, owing to his position on the Aadhar set of cases. For those familiar with the history of the case, the privacy angle first cropped up in the Aadhar controversy. In these cases, the CCS (through Gopal) argued that Aadhar was perfectly constitutional, so long as it was “voluntary”. To this extent, CCS’s position was aligned with that of the state (Union of India, represented by the Attorney General). Given this frame, it was easy enough to assume that even on the privacy battle, CCS/Gopal was with the state. As Gopal wrote to me in an email: “The simplistic understanding of the various newsmen and tweeters that flocked the court room is that those sitting on one side of the court are for the proposition and those on the opposite are contradicting it.”
4. CCS’s position (as evident from the pleadings) is that there cannot be broad fundamental right to the entire spectrum of “privacy” interests under the Constitution, but that certain aspects of privacy could be protected on a case by case basis under Article 21. The crux of their submission can be found in this one sentence: “It is submitted that the best approach would be to recognize that certain aspects of the right to privacy may be a part of Article 21, but that they would be determined on a case by case basis.“
5. CCS also argued that even if aspects of privacy could be protected under the Constitution, they needn’t all be classified as a “fundamental” right. They relied on the ruling in Maneka Gandhi which held that not every right read into Article 21 etc would constitute a “fundamental” right; but only those rights that constitute the “umbra”. In other words, the “penumbra” (those rights or interests that are merely incidental or penumbral towards achieving a more fundamental/core right under Art 21 or any of the other articles) would not qualify as a “fundamental” right.
6. CCS also argued that fundamental rights cannot be waived. And if privacy is to be elevated as a fundamental right, then any contract waiving individual privacy would be problematic! In other words, all social networking sites would be prohibited from collecting and using the personal information of users, even if the user agrees to such  collection/use through contract. Thankfully, this argument was rejected the Supremes. As I noted in one of my emails to Gopal: “I think the waiver argument is a bit misplaced. Since the right to privacy essentially means I get to decide what I want to share. Once I decide to share my personal information, it doesn’t mean I’ve waived the right. I’ve actually exercised my right; deciding how much of private information to give out and how much not to.”

Media Mistakes and Nuance?

That’s a fair bit of nuance in there! Given the more obvious mistakes that our mainstream media routinely make when it comes to IP reporting, this one may be a bit more excusable.

But then again, in view of the sheer importance of this matter (one of the biggest constitutional landmarks ever), our reporters (particularly those that tweet in real time) should have made more of an effort to appreciate the nuances.