Interview with Anand Grover (Pt.2) – Right to Privacy

Read part 1 here.

The Supreme Court Observer spoke to Senior Advocate Anand Grover, one of the counsels arguing for the recognition of privacy as a fundamental right in the Right to Privacy case. In part two, of his two part interview with Supreme Court Observer, he speaks about the privacy judgment, its impact on individuals as well as state, non-state and private players and the work that remains to be done to implement the judgement.

7) Now moving to the Privacy Case, where the 9 judge bench unanimously recognised the fundamental right to privacy. What was your initial reaction?

Mr. Grover – It’s a historic judgment in the way the judges unanimously recognised a fundamental right to privacy. Though the government is shifting its stand now and saying that we have always been pro-privacy, but their submissions of the court were contrary. The government is saying so because they are embarrassed to accept that they have lost this case.

8) Even with this judgment, the larger challenge on Aadhaar remains. So, is there a need to be cautiously optimistic when Aadhaar case comes before the court?

Mr. Grover – We will have to examine the Aadhaar statutory framework carefully. One thing is certain that there is insufficient protection in the Aadhaar law in keeping with fundamental right to privacy. It is a wrong argument to take that privacy will yield to State’s needs. It will yield in cases of crime when you need to know the name of the person. But, if it’s just for the purpose of collecting data for a private company, it’s not a reasonable restriction. We have to analyse Aadhaar to see if proper data protection mechanism is there when citizens give their data to authorities that link to Aadhaar system. For instance, should the data given to Aadhaar collectors be given to the government or to the bank?. So, when government is linking my Aadhaar data to various services, they are not seeking citizen’s consent and it can be seen as violation of privacy. This is one issue. The other issue is for what purposes can the Aadhaar data be used? All these issues have to be gone into detail when Aadhaar Act is challenged.

9) Recognition of fundamental right to privacy does not mean that it is absolute. So, what are the different constitutional standards that State action has to meet for restricting privacy?

Mr. Grover – There will be various standards. Also, these are standards that will be evolved constitutionally and also under the international law. So, we will have to see whether we can limit the standards to only Art 19 test or 21. Under Art 21, an American test that could be applied is whether restricting fundamental right is ‘compelling state interest’. Also, there is new jurisprudence evolved in Europe under provisions which are similar to the International Covenant on Civil and Political Rights which contains the right to privacy, which we have ratified. So, we can also go by that jurisprudence.

10) There is a section which believes that though the battle on privacy has been won the war on Aadhaar will be difficult to win. This is because the petitioners have sourced privacy in various articles –from 14, 19 and 21. If it was sourced in Art 21, then the threshold for restricting privacy would have been higher and this is what makes Aadhaar challenge difficult. State will locate different facets of privacy which requires a lower threshold for infringing.

Mr. Grover – I do not subscribe to the way these arguments have been posited. Because these are by academic armchair people who do not have to fight in a court of law. Our job was to win the battle now and face the war later. We have won this battle. We have to win the war but the notions of where it resides will not have significant bearing on Aadhaar challenge. The judges said that privacy is underlying the fundamental rights section of the Constitution. So, how the privacy evolves will depend on case to case. I do not think that we should be prescriptive that only the restrictions which go with 14, 19 and 21 would be applicable. We have to push for jurisprudence which has been established elsewhere and test those restrictions also, if the situation warrants it.

11) Do you think that public perception about an issue in today’s time and age be it triple talaq or privacy judgment to certain degree affects the outcome of the challenge significantly. Do you count on public support when you are fighting the case?

Mr. Grover – We had the whole of public opinion in our favour in Suresh Koushal case (Sec 377 IPC challenge) but we lost the case. In privacy case, we may have had a portion of public with us but we won the case. So, it depends. One would always want public to be in support of the case because after the judgment is delivered, the implementation part depends a great degree on the public support. In the court, it does have an impact. But if it does not happen at that time, then it is important to have the support after the judgment is delivered for smooth implementation and acceptance of the judgment.

12) Did you gauge the difference in public support for the triple talaq and the privacy judgment. My sense is that there was overwhelming support against the practice of triple talaq but in privacy case, people seemed divided about the content, contours and the need for privacy.

Mr. Grover – The public opinion might have been there but look at the outcome of the judgment. Even when there was overwhelming support against triple talaq we got the judgment in a division of 3:2 whereas, in privacy case, there is less support in public but there was an unanimous judgment from 9 judges recognising fundamental right to privacy. So, while there is no definite causal connection between the public opinion and the judgment, I reiterate that such support is crucial for implementation of the law laid down by the court.

13) What would be the possible impact of this judgment beyond Aadhaar. Specifically, on the private companies, non-state actors which hold users data and secondly, on the rights of the LGBT community.

Mr. Grover – It will have impact beyond Aadhaar. But, we have to go into nitty gritty of these issues. We have to see if these companies are using data without consent from users; are they using it for legitimate purposes; are there proper data security measures to ensure that data has not been taken without consent and if consent is given without understanding, then is it ‘informed’ consent? So, while challenging these practices of private companies, we have to go into nitty gritty and decide how to use arguments which will support our claims for strong privacy laws. This judgment has established privacy as a right, which is a bedrock. Now there is a wall in front of us and we have to punch holes into it. The specific legal challenges will now depend upon the actual Act, the various notifications that government issues.

14) How does entrenching privacy as a fundamental right better protect the rights of sexual minorities, who were targeted because of their identities?

Mr. Grover – We have had consultations with many sex workers, who all had Aadhaar cards. They said that they have witnessed the ill effects of Aadhaar by linking it. So, ordinary sex workers have understood the ill impacts of data breach which leads to privacy breach. As far as LGBT community is concerned, sexuality is definitely intrinsic to privacy. The State cannot breach it for LGBT or the sex workers. So, according to me, this judgment will help in Sec 377 case. It would also impact group of sex workers for whom owing to the nature of their profession, privacy is very much part and parcel of their work.

15) With 1.15 billion people already enrolled for Aadhaar, the data of citizens is already with the government. Do you see a mechanism to retrieve those data even if the Aadhaar Act is declared unconstitutional?

Mr. Grover – If data has been stored by entities, both State and private entities which don’t have a right to store it, they have to give it back or destroy it. In UK, the government has destroyed the data bank of citizens. So, that should be done if the Act is held as unconstitutional. The ordinary people do not exactly understand the implications of privacy because it has not come home to them now. Those who are affected by it, rich and poor are very much opposed to it. So, lets us see how it pans out. We have to now start working on the nitty gritty. We were in the generality earlier. We are not against Aadhaaar but against the usage of Aadhaar data without protecting privacy.

16) Do you see formation of large number of constitutional benches as part of Justice Khehar’s legacy?

Mr. Grover – It’s good that more constitution benches are being formed. But these are not systematically done. According to me, the administration of the Supreme Court has an element of adhocism. Today, I was witness to a case which went on for one and half hours but which should have been ordinarily dismissed in five minutes. Justice Khehar was indulgent to the petition in person and ultimately imposed a cost of 10 lakhs each on two petitioners. But there was no need to indulge the petitioners for so much time. It was self-evident that there was nothing in their petition which was only four pages with no understanding of the law. So, I am really upset at the way the court is running. There is no system, no planning which is decipherable. It’s run on the whims of Supreme Court judges. Though having more constitution benches is positive, we have to look at the cases where these benches are formed. Why the AAP versus Central Govt issue not taken up till today? It’s a very important issue of constitution and administration. So, we have to also analyse the cases where constitution bench was not formed despite it involving substantial question of law.