Privacy is a fundamental right but is subject to reasonable curbs: MP High Court

Source: Times of India

In a ruling that could shape how digital evidence is treated in matrimonial disputes, Madhya Pradesh HC has upheld the admissibility of WhatsApp chats, even if obtained without consent. To read more please go to the following link:

https://timesofindia.indiatimes.com/india/privacy-is-a-fundamental-right-but-is-subject-to-reasonable-curbs-high-court/articleshow/121961224.cms

Medical reimbursement is a fundamental right as affirmed by the P&H High Court

Source: Hindustan Times

Punjab and Haryana high court has held that the right to life includes the right to medical facilities and the denial of medical reimbursement violates Article 21 of the Constitution. The HC bench of justice Deepinder Singh Nalwa directed for the release of the reimbursement amount, observing that if the respondents have misplaced the medical bills, there is no fault of the petitioner. To read more please go to the following link:

https://www.hindustantimes.com/cities/chandigarh-news/hc-orders-release-of-decade-old-medical-bills-of-prtc-staffer-101749062471713.html

HC says right to reputation integrated in right to life

 Source: Times of India dated 07.02.2023

To read this article by Swati Deshpande, go to the following link:

https://drive.google.com/file/d/1DnvidrhcezWEWlcQAyAjIqeaI9VnNQsF/view?usp=sharing

No fundamental right of same-sex marriage, legal recognition can't be given by court: Central government tells Delhi High Court

 Source: Bar & Bench (https://www.barandbench.com)

The submission was made in Central Government's affidavit filed in a petition seeking recognition of same-sex marriage under Hindu Marriage Act.

The Central government has told the Delhi High Court that in spite of decriminalisation of homosexuality under Section 377 of the Indian Penal Code, there is no fundamental right of same-sex marriage. (Abhijit Iyer Mitra & ors vs UOI)

To read this article, go to the following link:

https://www.barandbench.com/news/litigation/no-fundamental-right-same-sex-marriage-legal-recognition-cant-given-court-central-government-delhi-high-court

The uphill battle for India’s digital rights

 Source: The Hindu

Privacy, accessibility, hate speech... the question of individual rights on the Internet is broad, complicated and fuggy. Ahead of Safer Internet Day (February 9), meet the organisations working to clear the air......

To read this article by Meghna Majumdar, go to the following link:

https://www.thehindu.com/sci-tech/technology/internet/internet-digital-liberties-organisations-of-india-2021/article33782713.ece

What Happened 71 Years Ago, When the Vision of the Supreme Court Was First Laid Out

 Source: https://www.thebetterindia.com

On 28 January 1950, the Supreme Court held its first sitting under the Indian Constitution in the Court Chamber of Parliament House.......... To read this article, go to the following link:

https://www.thebetterindia.com/248312/supreme-court-of-india-first-sitting-sc-chief-justice-hj-kania-fundamental-right-law-nor41/

Increased government action necessary during emergencies, duty of courts to ensure accountability: Justice DY Chandrachud

Source: www.financialexpress.com

To read this article online, go to link: https://www.financialexpress.com/india-news/supreme-court-video-conferencing-coronavirus-medical-emergency-justice-dy-chandrachud-latest-update/1969657/

Justice DY Chandrachud said virtual court hearings cannot replace or be a substitute to physical courts as it constitutes the spine of the judicial system.

Sitting Supreme Court judge Justice DY Chandrachud said increased action on part of the government is required during a public health emergency such as the one the country is currently facing, but it is the duty of courts to ensure accountability and protect rights of citizens.

Speaking at a webinar organized by Nyaya Forum of National Academy of Legal Studies and Research, Hyderabad on the topic ‘Future of Virtual Courts and Access to Justice in India’ on Sunday, he said that all emergencies, including a public health crisis that we are in “vest substantial powers in the executive”.

“During a public health crisis, increased government action may be necessary to preserve public health and welfare. However, irrespective of governmental action and restrictions, it is above all, the duty of courts — civil, criminal and constitutional — to protect the rights of citizens and ensure governmental accountability and the rule of law,” Justice Chandrachud said.

With the coronavirus outbreak having disrupted not just normal lives but the justice delivery system as well, Justice Chandrachud, who heads the e-committee of the Supreme Court that is tasked with overseeing the digitisation of the court, said that virtual court hearings cannot replace or be a substitute to physical courts as it constitutes the spine of the judicial system.

He said virtual court hearings started because Covid-19 descended without warning and “we had no other choice”.

“I want to dissuade people from the idea that virtual court hearings are some sort of panacea. We had no choice in the pandemic but to resort to this. They will not be able to replace physical court hearings,” he said.

“We had to protect those who come to court – lawyers, litigants, media personnel, para-legal, interns,” the Justice added.

The Supreme Court is under complete shutdown due to the coronavirus threat and shifted to virtual court hearings in order to keep the virus at bay and ensure safety of lawyers, litigants and judges. In a circular issued on March 23, the court had suspended entry of lawyers and litigants inside the court premises and directed that only extremely urgent cases will be taken up for hearing. These cases are being heard by the top court video conferencing without the personal presence of lawyers.

Going by the seniority, Justice Chandrachud is in line to become the Chief Justice of India on November 9, 2022 and remain in office for a duration of two years.

Kerala high court refuses stay on mandatory use of Arogya setu app

Source: Hindustan Times dated 13.05.2020

Aarogya Setu is a Covid-19 contact tracing app but critics say that the Centre’s directive to download the app compulsorily violates fundamental rights of citizens

The Kerala High Court on Tuesday refused to pass an interim order to stay the mandatory downloading of ‘Arogya Setu’ app on employees’ phones and sought a statement from the central government on data safeguards of the app being developed by the National Informatics Centre.

A bench comprising Justices Anu Sivaraman and M R Anitha asked the Centre whether it can give a guarantee that the information collected by the app would not be misused at any time. The counsel for the central government said privacy of data was ensured and it will submit a detailed statement in this regard during the next hearing. He said it has been recognised as the best app in the world fighting the Covid-19 and lakhs of people have already downloaded it.

“Extraordinary situation calls for extraordinary measures, we will come back to it in normal circumstances,” the bench observed while posting the matter for further hearing on May 18. Last month the court had also refused to stay the Kerala Government’s decision to engage a US firm ‘Sprinklr’ in vetting the data collected by health workers.

Last week Thrissur District Congress Committee general secretary John Daniel had moved the court saying the Centre’s directive to download the ‘Arogya Setu’ app compulsorily violated the fundamental rights of citizens and there were also chances of misusing personal data collected through the app. He also pointed out the Centre’s guidelines made it clear that employees who do not comply with the directive will have to face prosecution under the Disaster Management Act.

On April 29, the Centre had directed all officers and other employees of the government to download the ‘Arogya Setu’ app on their mobile phones immediately. Similarly it also instructed rail and air passengers to download the app for their travel.

Life, liberty and law in times of a lockdown

Source: Hindustan Times dated 20.04.2020

-- Shyel Trehan (Counsel in the Supreme Court of India and the Delhi High Court)

There has been a trade-off between the right to life and the right to liberty, with unfair consequences for the poor

The established discourse on rights says that the enjoyment of your rights ends where it affects the ability of another person to enjoy theirs. The idea is to ensure the enjoyment of rights by all, in equal measure. Today, however, we are facing an unprecedented situation: By your presence alone, you can threaten the well-being of another human being.

The Constitution guarantees the right to life and liberty under Article 21. But never before have these fundamental rights been treated as antithetical to each other. But they are today. To preserve life, in its real, actual and most basic sense, we are ready to give up liberty. The more liberty we surrender, the higher the likelihood that we preserve the right to life.

As much of the world enters various phases of lockdowns, scholars are trying to find a legal basis of the lockdowns and other legal measures undertaken by governments to fight the coronavirus. In every country, including India, there is confusion between “government advice” and measures that have the force of law. Some countries such as the United Kingdom (UK) and Singapore have hastily passed legislation to facilitate the collective surrender of the right to move freely and to enforce it through law enforcement authorities. However, despite the enactment in the UK, there have been many instances of confusion between legally enforceable restrictions, and “advice”, even among law enforcement officials.

In India, two laws have been used to tackle the virus: The Epidemic Diseases Act, 1897, a two-page relic from our British colonial past that arms the State to put in place temporary measures, which the public needs to follow, to prevent the outbreak of diseases. Anyone disobeying the Epidemic Diseases Act can be penalised under the all-purpose, all-weather Section 188 of the Indian Penal Code, which prescribes a punishment of imprisonment for up to six months, or a fine up to ~1,000, or both.

The second is the Disaster Management Act, 2005. The pandemic is a “disaster” under the wide definition of the Act. However, in its design, the Act is structured to address natural calamities. To secure compliance of directives issued under this Act, broad unspecific provisions are relied upon. For instance, the guidelines issued on April 15 by the home ministry under the Act include a slew of directives such as wearing masks at workplaces.

Apart from the prohibition on spitting, the violation of which entails a fine, specific punishments for other violations are not indicated. Any other violation would fall under Section 51 of the Act, which prescribes a maximum punishment of imprisonment for a year or a fine. This increases to two years, if the violation results in loss of lives or imminent danger. The notification issued by the home ministry also cites the trusty old Section 188.

No existing law is designed to address the coronavirus pandemic. So repurposing outdated legislation, or using legislation not designed for this purpose, may have enabled swift measures, but at the same time, it has a one-size-fits-all approach. It would be ideal to have a law that tailors punishments proportionately to the behaviour it seeks to secure.

Then there are the faultlines that emerge when law enforcement and public health collide. When three residents of an affluent neighborhood in Delhi tested positive for Covid-19, the police circulated a WhatsApp message, stating that their preliminary inquiry raised a “doubt” about a guard working with the family, who was suspected of attending a religious gathering. The message stated that the guard was now “on the run”. The police registered an FIR against him. A week later, it turned out that the guard tested negative for Covid-19. We see the word “suspect” used for people afflicted with symptoms of the disease. This is an epidemic, not a bank robbery. Yet, as we rely on law enforcement authorities to grapple with a difficult public health situation, we expect them to shift gears.

We need to change the vocabulary to encourage honest reporting of symptoms and exposure. How do we do this when India presents more complex issues about social distancing than perhaps any other country in the world? People do not observe physical space or boundaries, nor do they often have the luxury of them. We are hardwired to not be solitary creatures. Will we be capable of the behavioural change required to keep us all safe after complete lockdown measures are lifted, or will the change in behaviour continue to be demanded and imposed on us by the law?

We now seem to be part of a global consensus supporting the necessity to trade off one right to preserve another. In India, it is the poor that have disproportionately borne the burden of this. A trade implies receiving something in return for what you forfeit. Did the poor participate in a trade at all? The right to life has been interpreted by the Supreme Court to include the right to live with dignity. Yet, we failed to provide a life of dignity during lockdown to our most economically vulnerable people. This is a cross that the nation will carry forever.

Safeguarding free speech from threats is important

Source: Hindustan Times dated 28.01.2020

-- Madhavi Goradia Divan (Additional Solicitor General of India)

REASONABLE RESTRICTIONS: The enumeration of specific subjects in Article 19(2), on which the freedom of speech could be restricted, kept a check on excessive inroads into the right

When early drafts of the fundamental right to freedom of speech were put before the Constituent Assembly, members protested that the right was “riddled with so many exceptions that the exceptions have eaten up the right altogether.”

The framers of the Constitution drew from the example of the Irish Constitution by providing specific subjects on which the state could make law to restrict the freedom of speech. This was markedly different from the US Constitution, under which the freedom of speech was not mottled with exceptions, and was “absolute”, at least on the face of it.

There was a lively debate before the Constituent Assembly on what the permissible exceptions should be. Eventually, when the Constitution came into force on January 26 ,1950, the only grounds on which the fundamental right to freedom of speech and expression could be restricted were “libel, slander, defamation, contempt of court or any other matter which offends against decency or morality or undermines the security of or tends to overthrow the state.” Notable exceptions which found themselves in earlier drafts but got dropped in the end, were “sedition”, “public order”, “class hatred” and “blasphemy”.

Only a few months into the republic, the newly minted fundamental right to freedom of speech and expression under Article 19(1)(a) was put to test. The restrictions under Article 19(2) were invoked by three state governments to clamp down on select publications.

In Bihar, the government cracked down on a provocative political pamphlet. The high court rejected the state’s contention and that view was upheld by the Supreme Court in State of Bihar v Shailabala Devi.

In Madras, the state banned Crossroads, a communist weekly published by Romesh Thapar who was famously critical of many of Prime Minister Jawaharlal Nehru’s policies. The Supreme Court struck down the ban and the law under which it was issued, holding that nothing short of a threat to “overthrow the state” could justify a restriction on the freedom of speech under Article 19(1) (a). A breach of order of a purely local significance could not meet the test. This was followed in Brij Bhushan’s case, where the court struck down a pre-censorship order on the Organiser, a weekly run by the Rashtriya Swayamsevak Sangh.

Upset by the rulings, Nehru wrote to the then law minister BR Ambedkar, expressing a need to amend the Constitution to contain subversive activities. But on the floor of Parliament, Nehru justified the need for an amendment, not on a political ground but a “moral” one.

This was curious given that the occasion for the amendment was the three unfavourable rulings. Taking the moral high ground he said, “It has become a matter of the deepest distress to me to see from day to day some of these news sheets which are full of vulgarity and indecency and falsehood day after day not injuring me or this House much , but poisoning the mind of the younger generation, degrading their mental integrity and moral standards.”

In a speech which acquires special relevance in times of rampant and reckless fake news about seven decades later, he complained that “from the way untruth is bandied about and falsehood thrown about it has become quite impossible to distinguish what is true and what is false.”

The first amendment to the Constitution in 1951 expanded the exceptions to the freedom of speech to eight from what were originally four. Public order, security of the state, incitement to an offence and friendly relations with foreign states were the new insertions. One redeeming feature was that the subjects of restriction were prefixed with the word “reasonable”.

In 1963, a new ground was added: “in the interests of the sovereignty and integrity of India”. But despite the increased subjects of curtailment, seven decades of working the Constitution tell us that the enumeration of specific subjects in Article 19(2) on which the freedom of speech could be restricted, actually kept a check on excessive inroads into the freedom of speech. The addition of the word, “reasonable” helped to reign in the restrictions, even on the eight permissible grounds. Each restriction was required to meet the test of proportionality. The enumeration of restrictions, once condemned as eating up the right altogether, have emerged, somewhat paradoxically, as its protector.

In the landmark judgment Shreya Singhal v Union of India, comparing Article 19(1)(a) with its American counterpart, Justice Rohinton F Nariman held that while under the Indian Constitution, the right could be curtailed only on the eight grounds specified under Article 19(2), the American Constitution was not constrained by such limitations and the restrictions could travel beyond, so long as there was a “clear and present danger” to a competing right. The belief that the freedom of speech under the American Constitution was absolute was therefore, a misnomer.

Article 19(2) is organic enough to take care of challenges that might not have been envisaged so many years ago. At the forefront of civil liberties in recent times, is the right to privacy. Now recognised as a fundamental right, privacy concerns need to be balanced with the freedom of speech. Article 19(2) does not specifically mention privacy. But it does mention “decency and morality” as exceptions to free speech, and these exceptions are not limited to affording protection only against obscenity – they are broad enough to make space for privacy, an important “moral” value in any decent civilised society.

In Kaushal Kishor v Union of India, the Supreme Court, usually a staunch and steadfast guardian of the freedom of speech from the early days of the republic, decided to refer to a bench of five judges the question of whether the freedom of speech could be curtailed on grounds beyond those specified in Article 19(2), and whether Article 21, which has been stretched to include everything from the right to sleep to the right to a toilet can be invoked to introduce further curbs on the freedom of speech.

While the right to life and personal liberty under Article 21 in its many resplendent avatars, is vital, so is the freedom of speech and expression. We, in India chose to adopt the Irish template and consciously departed from the American one. The framers of our Constitution were careful to minimise the restrictions in Article 19(2), while seeking to ensure that all the social values which need to be protected from reckless speech found place in Article 19(2). Articles 19(1)(a) and 19(2) strike a good balance between protecting both free speech and other competing rights. There are grave dangers in opening a back door for inroads into Article 19(1)(a), particularly through a right as elastic as Article 21. Article 19(2) draws a Laxman Rekha and it is important, in the interests of free speech to stay well within that threshold.

Protect Right To Privacy: Petition to make social media traceable strips the privacy right of all meaning

Source: Times of India dated 24.01.2020

-- Mishi Choudhary (Legal Director, Software Freedom Law Centre, New York) and Eben Moglen (Professor of Law and Legal History, Columbia Law School)

A current proceeding earlier before the Madras high court but now transferred to the Supreme Court of India threatens fundamental harm to the freedom of expression on the internet, not only in India but elsewhere in the world. The pending petition seeks to require that Facebook make all WhatsApp messages traceable to their originator through the linkage of identity information (mobile phone or, perhaps, Aadhaar numbers) to all messages exchanged.

It should hardly be necessary – given the Supreme Court’s judgment in Justice KS Puttaswamy and Anr vs Union of India and Ors which confirmed that we have a fundamental right of privacy – to say that this petition must be dismissed as an affront to our basic constitutional freedom.

But technology is hard and law around it complicated, therefore, sweeping statements about terrorism and nationalism are made by counsels in court forcing the judges to become experts in matters far beyond most people’s expertise. They are expected to not only understand the intricacies of technology but also ensure innovation is not curtailed, all along addressing the fear mongering of new uses of technology.

Facebook is also entirely justified in objecting that it could not possibly satisfy such an order without fundamentally compromising the architecture of WhatsApp not only in India, but also throughout the world. WhatsApp is a credible communications system because it provides “end to end” encryption of the messages it carries, ensuring that Facebook itself cannot read the contents of our communications. Facebook can, it is true, determine the identity of any message’s sender and recipient, but if A sends to B a message that B then forwards to C, because Facebook cannot see the content of the messages it cannot tell that what B sent C was originally written by A. The demand for traceability is therefore a demand that Facebook compromises the security of all communications it handles.

By now, many of us are accustomed to observing technologists who find law challenging and lawyers who understand no technology and policy makers who are expected to know it all but are usually lost balancing several competing interests. Most law officers for the government assisting the court nonetheless inform the court that if only Facebook understood its technology as well as they understand it, everybody would see at once that down is up, light is dark and left is right.

To give an example of how hard an intersection of law, technology and policy can get: this petition is supported by filing of academics including renowned names from IITs. We have great respect for them and others who are really trying to assist matters here but cannot find gold keys where none exist. One such submission says that Facebook can be required to add the identity information of each message originator to the message itself before it is “end to end” encrypted, allowing every communication to be traced back through the chain of forwarding to its original source.

Thus, A sends a message to B which is “tagged” as coming from A. B decrypts the message, and forwards it to C, who receives it with the included “tag” identifying A, and decrypts it in his turn. If C finds the message “disturbing”, he can then complain to law enforcement authorities with A’s identity in hand. The submission says that this does not require Facebook to compromise encryption. That’s narrowly true: Encryption is formally undisturbed, but the privacy encryption designed to protect is destroyed anyway.

Obviously this mechanism destroys A’s privacy, if for example she didn’t want her message to B forwarded and is now being pursued by the government at the behest of C. According to the submission this is no problem, because A has a remedy: B has broken an implicit contract with A by forwarding the message over A’s implicit objection, violating a relationship of trust which (he says) must have existed between A and B in the first place.

But this advice ignores how law operates. Government here orders an unconstitutional invasion of privacy, directing F to destroy the privacy of A, as well as other intermediate recipients of A’s message. But though A’s right against government has been vitiated, that has been theoretically replaced by a private action against B.

From the lawyer’s point of view, this is preposterous. Unconstitutional action is not acceptable just because a party harmed by the state can potentially bring a contract action against some non-governmental private party. Also, if you have ever dealt with the Indian legal system, saying go to court if you are worried about privacy in this age is the most ineffective way of getting any relief.

Many well-intentioned observers have pinned all their hope on the recently tabled Personal Data Protection Bill, 2019, to protect citizens from the ever broadening reach and greed of companies and other entities for our data. While India does need such a law urgently, in no way can this address the problems being presented by this case where all citizens’ privacy and security is held ransom to check the notoriety of a few malicious players.

In our view, the Supreme Court should reaffirm that the fundamental right of privacy under Article 19 recognised in Puttaswamy protects both the secrecy and the anonymity of our personal communications, and prevents GoI or its courts from ordering technological intermediaries to breach those rights on its behalf. The government’s law officers should be required to tell the Supreme Court whether they wish to stand behind this witch’s brew, or whether the technologies of totalitarianism are unacceptable in the world’s largest democracy.

Forced celibacy a violation of fundamental rights: Madras HC (Raises Compensation To Paraplegic Man From ₹5L To ₹63L)

Source: Times of India dated 25.11.2019

Forced abstinence from sex is a violation of fundamental rights under Article 21 of the Constitution, the Madras HC said while raising 12-fold the compensation awarded to a man who became a paraplegic after an electric post under repair fell on him while he was walking down a Chennai road in 2008.

N Ananda Kumar was 26-years-old at the time of the accident, which damaged his spinal cord and left him with 100 per cent disability.

The Chennai civic body had appealed against the Rs 5 lakh compensation awarded by a single-judge bench of the high court and asked for the case to be referred to a civil court. The division bench of Justice N Kirubakaran and Justice P Velmurugan, however, dismissed the appeal, saying the civic body’s negligence not only left Ananda Kumar wheelchair-dependent but also destroyed his chances of getting married. The bench held that the victim remained a bachelor against his wish because of paraplegia and was deprived of marital pleasure and bliss. Terming this a violation of human rights, the court cited medical literature to emphasise that forced abstinence has negative health consequences.

The bench suo motu enhanced the compensation to Rs 63.26 lakh, saying the reason for a court’s existence was to do justice and not to direct parties involved in litigation to approach various forums — in this case, a civil court.

In the appeal, counsel for the city corporation had argued that the contract to repair the electric post was outsourced and there was no negligence on the part of the civic body. It said Ananda Kumar was “carelessly” walking down the road while speaking on his cell phone. “Had he avoided speaking on the cell phone, and had he noticed the work being carried out, the accident could have been avoided,” the counsel said.

The original verdict by a singlejudge bench had noted that the accident occurred because of improper welding carried out by the corporation, not the electricity board. “It was not only the contention of the victim, but also of the electricity board that there was negligence on part of the corporation and improper welding caused the accident,” the bench noted.

HC: Intercepting calls violation of right to privacy

Source: Times of India dated 23.10.2019

-- Swati Deshpande

The Bombay high court has quashed three orders passed by the Union home ministry to intercept phone calls of a businessman who is under CBI probe in a bribery case, saying it violates the right to privacy as held by the Supreme Court, reports Swati Deshpande.

Citing another SC order that tapping could be allowed only in a public emergency or in the interest of public safety, the HC directed the destruction of the illegally intercepted conversations. The interception orders had been passed in October 2009, and December and February 2010.

The HC’s order came on a plea filed by Mumbai businessman Vinit Kumar against whom the CBI has filed a case for allegedly giving a Rs 10 lakh bribe to a bank official for credit-related favour.

It directed the destruction of the illegally intercepted conversations and, again quoting a Supreme Court order, said tapping can be allowed only in a public emergency or in the interest of public safety. A bench of Justices Ranjit More and N J Jamadar held that permitting illegal interception “would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.

The HC order came in response to a petition by south Mumbai businessman Vinit Kumar against the interception orders in October 2009, and December and February 2010. CBI had registered a case against him for giving a bribe of Rs 10 lakh to a bank official for credit-related favour. Making it clear that it was not going into the merits of the CBI allegations, the HC said: “The intercepted recordings stand eschewed from the consideration of trial court.”

The court found that the government took a varying stand, and said it “deprecated” such stand, especially toward a fundamental right. It further observed that if SC judgments and laws against such intercepts are permitted to be flouted, it may amount to “breeding contempt for law, that too, in matters involving infraction of the fundamental right of privacy under Article 21”.

Kumar’s plea was that the ministry’s sanction contravened the provisions of the Indian Telegraph Act, 1885, and urged that the recordings be destroyed as directed by the SC in the landmark People’s Union for Civil Liberties (PUCL) versus Union of India judgment of 1997. He also relied on a 2017 9-judge constitution bench judgment in the KS Puttaswamy case that speaks about fundamental freedom.

Quoting the PUCL case, Justice More said: “The expression Public Safety... means the state or condition of freedom from danger or risk for the people at large. When either of the two conditions is not in existence, it was impermissible to resort to telephone tapping.”

The judge added that “to declare that de hors (outside the scope of) fundamental rights, in administration of criminal law to secure evidence against the citizens, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.