 Hello and welcome to NewsClick. Today we have Dr. Usha Ramnathan and we will discuss the verdict on privacy which has come from the Supreme Court. Usha, it's good to have you with us and to celebrate today. What could be a very important judgment? It's an incredibly important judgment. If I can just tell you a couple of things on this. When the Attorney General said in court that privacy is not a fundamental right. In fact, he said it's not a right at all in August 2015. Petitioners who are appearing in the public interest in the court and Shyam Divan who is their lawyer then and now. There was a lot of unhappiness saying that we came in here to protect the rights of people and it looks like we've allowed for one right to be suspended and placed in jeopardy. And I think yesterday something happened that none of us could have anticipated. Because in 2012 when we were working on the privacy committee, we were worried because privacy actually at that time was a relatively weak right in comparison to other rights. And what they've done through the judgment yesterday is elevated privacy to a place where which I think we wouldn't have had the confidence to ask the court to elevate it. It's also important because it's coming at a time where and I don't just mean the political climate but even in terms of judicial decisions over the years where the idea understanding of liberty had kind of started getting eroded. And this has showed it up in a huge way. One important case which has been sort of re-looked at is the ADM Jabalpur. For the listeners in NewsClick that also affects me because I was one of the petitioners in the ADM Jabalpur case. I was in jail at that point of time and we had hoped that the Supreme Court would give a better judgment but it really gave a very atrocious judgment. And this at least has said that record straight is restated, changed the judgment. Yeah, in fact the heading before the starts is called discordant notes because in terms of constitutionalism ADM Jabalpur and the 377 case in the Supreme Court are the two really discordant notes. When they say discordant it's an expression of their embarrassment that the judiciary could have done this. So ADM Jabalpur I think has been, they've had to bear that burden for the longest time. And when the case started getting heard this time I think one of the first things that Justice Chalameshwar for instance referred to was he said we can also deal with the ADM Jabalpur case. It's like they were waiting for an opportunity. This was a nine judge bench. So it provided them with that opportunity and I'm glad that they used it and they used it well in both ADM Jabalpur and in the 377 case. What however is a little disturbing is that in June this year, June 9th when they gave the income tax and pan card order that order actually suspends article 21. You know the right to life and personal liberty because privacy had been referred to a larger bench. So they said that you know we are not going to deal with the article 21 challenge. Actually what has been referred is only privacy but they said dignity, bodily integrity, you know privacy all of it is going to be kept in suspension till a later decision I mean is brought by a larger bench. And in the meantime they can carry on with the income tax law and the change that was there in the law. This actually has gone one step even beyond ADM Jabalpur and it's kind of shocking that we are no longer shocked by these things. The fact that the Supreme Court allowed that to take place suspend 21 without an emergency. It's like saying that we are in a permanent state of emergency and so the state should have the kind of even greater powers than they had during the emergency. I mean what is really sad is that not sad, scary is that we are not seeing what a decision like that can mean to us. If they say that we will carry on with what we are doing, if there is something pending which is going to impact your life and liberty we will worry about that later. If it's going to impact your dignity we will worry about it later. If it's going to impact your bodily integrity we will worry about it later. Whenever that may happen if a larger bench hears this case and there was at that time there was nothing in sight to say that they would be hearing this case as soon as they did. To say that it can be kept in suspension till then it's a shocker. But this judgement corrects that or is it still in the way? No, it doesn't correct it because it doesn't really acknowledge that. Interestingly the triple tala judgment recognizes that but not in terms of the Article 21 thing. It says that there is another element of it where legislation can be challenged on the ground of arbitrariness and both the Rajbala decision in the Panchayat case and the Pankard and IT case, in income tax case both of them had said that we cannot challenge legislation on the ground of arbitrariness that has been said. We are also talking about the Adhar judgement, Adhar case and the fact that lot of issues have come up with Adhar. We are not going to go into all those issues today. How does the privacy judgement affect the Adhar case as it is going on in the courts? Partly because they seem to have left a lot of loopholes in this judgement which should be addressed finally by the Adhar bench. See when they were hearing this case you would have noticed that it was very very brief while they heard this case. In fact when they started the hearing they said it was just going to be for one day. That nine judges would be sitting for one day and obviously that couldn't happen. But it's a remarkably short time for such an important issue and for nine judges something that nine judges had to consider can't be just something frivolous. So there wasn't very much time for instance for the petitioners to speak. They therefore were very clear that they were not going to deal with the UID itself. They were not going to deal with the project. So anything that they've said about the project in the case is only a representation of what the state has said to them. So they have for instance said that they've equated the right to privacy with the right to life and personal liberty. It's really elevating the right to privacy very high because the respect for life and personal liberty in a constitution is extremely high. So they've elevated it to that extent. Then they've said since right to life and personal liberty can only be taken away through a procedure established by law you need a law. But it's not any law. The law has to be fair just and reasonable. So it can be tested therefore on multiple grounds constitutional grounds. Then you have a three stage thing because they say if you're going to have any violation any intrusion into the privacy right you have to first of all have a law. And the purpose of that law will be to define what they intend to do in what manner will they be an intrusion on privacy. Define the extent to which they can be that intrusion. Define procedures by which you'll protect the rights of people. There will be a range of things that they have to do for it to become part of due process. And second they've said that it can only be where there is a legitimate state interest. This is in a sense a come down from the compelling state interest that you had in 1975. But it's more than made up for it by this that it's a very strong right that you have now. So even when you say legitimate state purpose or legitimate state interest it has to recognize that privacy is a threshold. The threshold is a very high threshold and that's the right. And the third is that it has to be proportional both to the problem that you see and to the extent to which you can take away citizens rights. So proportionality has been set out but it still has to be unpacked. That'll take and it'll happen case to case it'll happen. So in terms of legitimate state interest they've said many of the things that the government has been saying over the years. So in a paragraph or two they say that for instance if you want to stop money from you know subsidy money from flowing out you want to staunch it. That could be a legitimate state purpose. Law and order you know crime dealing with crime could be a legitimate state purpose. National security could be a legitimate state purpose. Now these are all broad statements that are made which then have to be filled up. So the court has basically said yeah you have all these explanations. They could be legitimate state purposes. When you have to actually exercise that you have to establish what the content of that is because that is where due process will come in. So I think it's a very important thing that they've done because see the idea of privacy is not only about privacy in relation to my neighbor knowing something about me. It is about power and they have acknowledged that this is about power and therefore put certain kinds of restraints on the state. Saying that we understand that you need to function we respect that and a court will always respect the government on this. But there are limits to what you can do and you'll have to explain yourself fully when you're going in for any kind of intrusion on that. Even if they have my biometric information say then they also need to protect it. They also need to see that it is not quote unquote misused. It is secure and if the entire database for instance is compromised what happens to the people then. And those things then do come under the privacy judgment that is already taken place because if the state secures my biometric information then it has to also ensure that my right to privacy after I've given that information is still maintained. That is actually part of the judgment. That's why although they have this part where they say that you know this could be a legitimate state interest that could be they have really stringent grounds on what you know on how the state needs to function. So they say informational privacy is an necessary part of you know part of the right to privacy and the part of life you really can't do away with it and it's it's it waxes poetic if I can mix metaphors and says a lot about this. So you know this the part where they say that this can be legitimate state interest whatever whatever is really just paying some respect to the state because the government and the court. One of the things that they have to learn and live by is to be civil with each other. So if some of the challenges that have been made by the state had been made by a private litigant I think they would have come down heavily on them. So therefore the privacy case has a lot also for the other case as it will come up. So it's not simply as lot of the papers have reported that the court has said oh there is restriction on liberty is also there so there can be restriction on privacy as well. So it's not going to be as simple as that. No no first of all no first of all no secondly we must remember that this judgment doesn't say anything about what these companies are doing right now. What in you know this the whole idea of the India stack iceberg all these you know and various companies which are geo downloading all kinds of things and the government saying go and give you a number to all kinds of private providers. The court has said nothing about that and that goes way beyond you know the stringency will be far greater because you can't have a legitimate state interest in saying that I have to go and give my number to all kinds of private players. There can be absolutely no you know explanation for that where consent is taken off where all you know where all protections for the person is taken off it just cannot happen. So this this judgment will be extremely important even for that for the principles for what law can be made for what the state can ask us to do vis-a-vis these companies do. So they haven't addressed it squarely because they they were not dealing with the UID case. So they don't even know that there are all these companies involved they don't even know you know about all these foreign companies who are coming in and taking the data that was not their brief. So when that brief is opened we'll see a very different argument. This also is an implication for the digital companies the digital global digital monopolies who are in this space including Indian digital monopolies like geo and so on. Because they are also data mining our data that using our data and as you know today anybody can get any information from my credit card your credit card your bank statements by paying some money and their legitimate companies operating to give that information to others. They are buying it off telephone telecom companies buying it off financial companies privacy judgment has also some things to say about that. It's a mixed bag because it's got a whole thing on informational privacy which is because of all these technologies that have come in. But the judge who's given whose author the main judgment has also been very careful because he you know he he's kind of made sure that innovation will not be will remain will not remain unprotected. So he's kind of stepped beyond what was argued and you know what it's more what he thinks should be there. I think some of the statements that he's made for instance about innovation will have to unpack itself in various ways because innovation you know against privacy is a very different thing from saying innovation respecting privacy. So if the privacy right is not affected all of us want to see technological progress. So that balance for us and that protection by the law from us is what we'll be drawing from this judgment. The rest is really a kind of what the what the main judgment says is that we are not going to come in the way of technology becoming part of our lives. We will allow that to happen. But with data protection laws but you can't yeah you can't you yeah but with data protection laws which doesn't which don't exist which doesn't exist today. Interestingly the committee that's been set up with Justice Shri Krishna has members in it at least two or three of them who have been directly involved in saying there should be no privacy right for the people of this country. So it will be interesting to see if they are able to get their head around this judgment and actually learn to respect the privacy of these. This is all the time we have today for news click discussing the issue of privacy and the judgment that has come. We will catch up with Usha Ramnathan again on the issue of Aadhar and on data privacy laws etc that we have discussed. Thank you very much Usha to be with us and keep watching news click for further developments.