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(This is in continuation of our discussion on Justice Chelmeshwar’s part of the judgement in the Privacy case)

While the nine eminent judges went about their mission to declare “Privacy As a Fundamental Right”, they also encountered the problem defining what is “Privacy”.

The challenge of defining Privacy Rights without a definition of Privacy has confronted law makers as well as law followers which has not been appreciated much in the past. Now it is interesting to see that even the nine judges are unable to agree on how to define “Privacy Right”.

Justice Chelmeshwar uses his Judicial freedom to

-first admit that ” Whether it is possible to arrive at a coherent, integrated and structured statement explaining the right of privacy is a question that has been troubling scholars and judges in various jurisdictions for decades.” and

-then to say “In my opinion, there is no need to resolve all definitional concerns at an abstract level to understand the nature of the right to privacy….Definitional uncertainty is no reason to not recognize the existence of the right of privacy….“.

He then concludes that “for the purpose of this case, it is sufficient to go by the understanding that the right to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each of these facets is so essential for the liberty of human beings”.

These three facets “repose”, “Sancturary” and Intimate Decision” are picked from academic concepts postulated by a US author Bostwick.

“Repose” refers to freedom from unwarranted stimuli, “sanctuary” to protection against intrusive observation, and “intimate decision” to autonomy with respect to the most personal life choices. All these are covered under the concept of Privacy being “Right to be Left Alone”.

Unfortunately, the definition does not form part of the order and is not handled similarly by other Judges. Hence it remains one of the opinions of the nine judges.

This means that search for an acceptable definition of Privacy continues even after this judgement.

Though Privacy Invasion is recognized  from State as well as Individuals and Companies, the judgement does not provide proper guideline on how the stake holders need to respond.

Of course it is understood that the Government cannot make any laws that infringes on the Privacy Rights subject to “Reasonable Restrictions” as per Article 19 of the Constitution.

However, when Privacy invasion occurs either by the State or another individual or a Company, there is no wisdom on how the affected individual would be compensated. For this we need to await a law from the Government.

Presently law is being contemplated on “Data Protection” which is not directly equal to “Privacy Protection”. In the absence of an agreed definition of Privacy, it is not easy to define what information/data can be considered as “Relevant for Privacy Protection” and has to be protected in the Data Protection Act.

Other judges have used the term “Information Privacy” to identify personal information in data form and state that “Right to control collection and dissemination of such personal information” is “Privacy Rights in the Data world”.

This is acceptable for the Privacy Protection in data form but inadequate when protection of Privacy is to be considered when information is handled orally or through non electronic written form.

The Judgement does not clarify this and therefore the Government formulating Data Protection Act or Companies and Individuals who look at ITA 2008 for Privacy protection in data form are not wiser when privacy has to be protected in non-eelctronic form.

Additionally, several stray aspects of life are loosely cited as examples that may define different facets of Privacy. For example, Justice Chelmeshwar reflects on ” Decision to stop medical treatment by a patient”  or a decision of a woman to bear or not bear a child, or abort pregnancy as Privacy issues. The reflections go on into many other areas including right to work and chose the type of work, right to travel, right to chose a place of residence, as other areas where the principles of Privacy can be extended.

Justice Chelmeshwar has even delved into political issues by commenting

“I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life.”

Similarly other judges have included the Right to sexual orientation as part of Privacy in their reflections.

By making such comments in the body of the judgement, all these issues are being projected as part of “Privacy Rights” which in future will come up to Supreme Court in the form of writ petitions from the Citizens of India trying to protect their fundamental rights.

No doubt that this is a feather in the cap of Indian democracy that our Judiciary considers that an information that if I post in my WhatsApp that “I ate Masala Dosa at Vidyarthi Bhavan today ” and some body forwards it outside, it can be contested as “Violation of my Privacy Rights”. But.. is this what Privacy Right protection all about?

Adding these reflections in the Judgement without a proper confirmation on either acceptance or rejection of the same by a majority of judges as a part of the final order has only brought in more confusion to the public and was completely avoidable.

Now individuals and companies are placed in a dilemma if these individual reflections are to be treated as part of the order or ignored. This will only help frivolous litigations in future from which no body but the Privacy advocates benefit.

Considering the vague reflections included in the judgement, it would not be surprising if tomorrow, in a divorce case, husband or wife may claim “Privacy Right” not to be “husband and wife” or  “Transfers in Jobs” may be contested as “Right to Privacy” and so on. The capacity of this judgement leading to nuisance litigations is very high because of the numerous reflections being made part of the judgment document though they are not part of the final order.

For the time being, it may therefore be better to ignore these stray comments since they are not part of the final order or form a majority common decision. Government when it frames the Data Protection law should not give weightage to all these different instances of life as “Privacy Issues” and make life unbearable.

In these facets, the Judgement reflects an attitude of the Court to consider the judgement as an erudite academic essay  without the need for concluding it properly with either acceptance or rejection of a point of view.

Similarly when a decision of multiple judges are involved, if individual opinions are not consolidated into groups with indication of which judge agrees or rejects the issue, and further export it into the final order, the communication to the public remains incomplete.

As a result, after such a judgement, stake holders are not wiser than what they were before. Perhaps they are more confused than before.

The “uncertainty” created out of such “Vague” judgments can be avoided if Judges consider that a Judgement is not written to show case how much the Judge knows about a subject but how much the public needs to know in solving a legal problem.

[P.S: I am aware that it is not customary for anybody to make comments on the judgement particularly when it comes from the highest Court of the land.

But in the hope of Courts rendering judgments which can be read and understood by common people without the need for intermediaries, I have found it necessary to express these views.

Commercially, if there is more the confusion in the market, better it is for consultants like us because some body is needed to interpret the interpretations rightly or wrongly and present it again to some other Court so that debate can continue.

But law is not meant for creating commercial value to consultants and lawyers. Law has to be simple and understandable by the Citizens and other stake holders so that they can comply with them without the assistance of a third party.

Voluntary compliance will suffer if law is vague and complicated and the trend has to change towards law being lucidly explained. This may not be possible in the writing of the law but it is possible in the judgement. Hence even if Law can be vague but Judgement should be precise. I hope we will see short and precise judgement particularly when it involves concepts that need to be understood by Citizens and adopted as part of their life styles.

The touch stone of the “Privacy Judgement” is whether this judgement can be understood by the common man on the street who is the subject who has to enjoy “Privacy” as a “Fundamental Right”. If “Privacy Law” is meant to be understood as a PG Diploma course, then Law of Privacy will remain an elite concept and does not reach to the masses.]

Naavi

 

The alacrity with which the honourable Supreme Court constituted a 9 member bench to review “Whether Privacy is a Fundamental Right” and the release of the voluminous judgement before the retirement of Chief Justice Mr Kehar indicates that the CJI wanted a “Historic” judgement to go on record. The Court has succeeded in this objective though it has raised many other questions which could surface because of the judgement.

Though the Order was a simple order re-iterating what we all agreed and practiced that “Privacy is an important human right respected in a democratic society”, it appears that it has prepared a ground which may enable the other bench reviewing the Aadhaar Act to take a decision to strike down the Aadhaar Act as unconstitutional.

While the final order does not give any indication of such an inference, the detailed reading of some parts of the Judgement where some reflections of the judges are available,  provide such an indication.

The reflections buried in different judgments are not binding as the order itself. But there is a possibility that any reflection of even a single judge,  could be quoted in future judgments as if that is part of the views of the Nine members of the bench.

It is important for us to remember that what is outside the order is only an opinion and if it is by one or two of the judges, it should be considered as the opinion of those judges and not as a “Unanimous” or “Majority” decision.

With this background we may try to observe some of the observations contained in the judgement of honourable Justice Chelmeshwar (Pages 267-310) which need some special mention.

The Judgement notes three aspects as the crux of the enquiry namely:

1. Is there a fundamental right to Privacy under the Constitution of India?
2.If it exists, where is it located?
3.What are the contours of such right?

The Supreme Court appeared perturbed that in the Aadhar Case, the Government made a statement that in view of the M.P.Sharma and Kharak Singh judgements, “Privacy may not be considered as a Fundamental Right under the Constitution”.

The existence of some earlier judgments which held such view was considered as a hindrance for the Aadhar bench to rule otherwise. There was therefore a need to arm the Aadhar Bench with a clarification that “Privacy is Fundamental Right” so that the argument of the Government on the lines that it is not could be nipped in the bud.

The Bench was therefore categorical to state that the M.P.Singh and Kharak Singh judgments are “Over ruled”.

In order to arrive at a judgement as it finally turned out, an elaborate justification has been provided through out the 547 page judgement form 100’s of earlier cases from India and abroad.

In the process of trying to defend “Privacy” as a “Fundamental Right” which perhaps was deliberately omitted by the framers of our Constitution,  the bench arrived at a new “Principle of Interpretation of Constitution”  that “Written Text of the Constitution” has no sanctity. Despite the noble intentions of the bench to protect Privacy even against the Aadhaar legislation, I consider that this new principle of interpretation of written text of constitution is a dangerous trend and needs to be reviewed.

The essence of the argument put up by the Judge to support inclusion of Privacy” as a “Fundamental Right” was that “Whatever is written in the Constitution is valid only in the light of the interpretation that the Supreme Court may provide”. In other words, this means that the Court holds a view that Constitution is written not in the legislature but in the Court room.

This was stated in no uncertain terms in page 284 of the Judgement in the reflections of Justice Chelmeshwar where it is stated

“To sanctify an argument that whatever is not found in the text of the Constitution cannot become a part of the Constitution would be too primitive an understanding of the Constitution and contrary to settled cannons of constitutional interpretation.”

The statement of Justice Chelmeshwar legitimizes the right of the Court to ignore the words of text used in the Constitution and give any meaning as the majority of judges of a bench agree upon.

It is difficult to agree with this contention that there is no “sanctity” in the words of the written constitution since if this is extended to other aspects of constitution, the respect for the Constituion may be in jeopardy.

Fortunately this is the reflection of only one of the 9 judges and not a part of the nine member order and it has to be treated as such.

Additionally, there is inherent contradictions within the judgement which also says

“The Constitution ….is a testament created for securing the goals professed in the Preamble…… ‘We the People’ of this country are the intended beneficiaries of the Constitution. It must be seen as a document written in the blood of innumerable martyrs..” etc.

If Constituent is a document written in blood of the martyrs, can what is omitted to be written be considered casually and inserted as an interpretation?…..

Should not the Bench asked the Government to amend the Constitution by adding the specific words into the Constitution and preserved the sanctity of the written text?

While the Court is quick to point out that the Government does not have the right to amend the Constitution easily, it asserts it’s own right to interpret it in a manner which is not written and what had been earlier upheld by M.P.Singh and Kharak Singh judgement.

This appears to a judicial over reach to usurp the function of a legislature which could be accomplished only with a two third majority perhaps with the approval of the majority of State legislatures.

At one place the Judgement says that “… Rights arise out of custom, contract or legislation, including a written Constitution…” but it does not accept that in Indian Custom, health information is not considered a “Private Information” and not sharing health condition with relatives is considered as a “Rejection of closeness of relationship”.

This thought that “though Privacy is not part of the written constitution in Part III, it should be implied” runs through the judgement and ends with a declaration that “Privacy is a Fundamental Right”.

The judgement will definitely create a hurdle for the Government in making any legislation in future since the Courts may take a view that some thing in the proposed law violates “Privacy” and therefore cannot be considered valid.

It will be a running battle for the Government to convince the Supreme Court for each of its legislation even if they are passed by both houses of Parliament.

It appears that what Mr Kapil Sibal as a senior functionary of Congress could not achieve in the Rajyasabha seems to have achieved by arguing in the Court and getting a favourable judgment.

To ordinary citizens however, it appears that the Judgement is an assertion of the Judiciary that their interpretation is supreme whether some thing is written or omitted in any law.

The judgment seriously undermines the power of legislature and leaves them with no power to make any law since even what is not written in the Constitution can be imputed by a group of Judges if they are in sufficient number.

Now this principle that “Written words in the Constitution is subordinate to the interpreted views of the majority of the judicial bench” will reflect in the Ram Janmabhoomi judgement or Uniform Civil Code or Special Status of Kashmir etc. In future even if a Constitutional amendment is passed by the Parliament, the judiciary can still use its “Power to Interpret” and give meaning which is not an intention of the legislature.

This could be one of the undesirable impacts of this Judgement.

In the light of the developments, I foresee that the Aadhaar Act will come under a serious threat of rejection in the coming days and cause a serious embarrassment to the Modi Government. Government needs to be prepared for this reverse. In the past we have seen legislature making retrospective laws.

In this judgement, Supreme Court paused the Aadhaar case and altered the judicial environment  for a case under process with this order. It was in effect like retrospective legislation and represented creative thinking of the outgoing CJI.

Naavi

[This is in continuation of our debate on the Privacy Judgement]

The Puttaswamy judgement from the 9 member bench of the Supreme Court which was hailed as a “Historic” judgement ended up with a simple declaration that “Right to Privacy is a Fundamental Right under the Indian Constitution which is subject to the reasonable restrictions applicable to all such rights”. Let us now look at how this decision affects the three stake holders we identified for this issue of “Privacy” namely,

a) The Citizen of the Country who should feel that he has a “Right to Privacy” in whatever manner the Constitution understands it.
b)  The Government which makes laws and uses services such as Aadhaar which may have an indirect association with the principle of “Privacy”
c) The business entities which use services that have a direct and indirect association with the principle of “Privacy”.

Whether a “Right” is a fundamental right or a legal right makes some difference as to the Government but not so much for the Citizen or even the data processing Companies

Because the “Right to Privacy” is a “Fundamental Right” under Part III of our constitution, Government cannot make any law which a Court may interpret as resulting in “Privacy Infringement” but not saved by the “Reasonable Restrictions” argument.

The “Reasonable Restrictions” relate to

a) interests of the sovereignty and integrity of India,
b) the security of the State,
c) friendly relations with foreign States,
d) public order,
e) decency or morality, or
f) in relation to contempt of court,
g) defamation or
h) incitement to an offence.

A detailed academic discussion on these “Reasonable Restrictions” can be found here. As one can see, the “Reasonable” restrictions is reasonably vague and there could be many excuses under which a law can be defended under one of these restrictions.

In each such case, the law can be challenged at the High Court or the  Supreme Court as violative of the fundamental rights and the Court will apply the test of reasonableness and the need for the law before ruling either the law does not violate any of the fundamental rights or that even if it does so it may be saved by falling into one of the reasonable restriction categories. If not the law will be struck down.

The current judgement will therefore provide an opportunity to challenge every law made by the Government and the Courts will spend their precious time in the coming days debating these issues.

If the Government is careful in drafting the law, and if the Judiciary is not too unfriendly, then it may be able to justify its position and get through the law as it intended or with whatever modifications that the Court may suggest.

The immediate challenge  is regarding the UIDAI Act and the use of Aadhar as an ID for providing many of the Government services with a need to be linked to the PAN, Driving License or Mobile. Each of these can be eminently defended under national security and hence the law may pass the test.

Key is Interpretation and it depends….

We need to however observe that ultimately it is the “interpretation” of the judges that determines whether the law is violative of the fundamental rights or not.

Even now the 9 member bench has only interpreted that “Privacy” is a “Right” which is part of the “Right to Life and Personal Liberty” and Article 21 and 19 are not different and hence the bench came to the conclusion that Privacy Right is a fundamental right. The Constitution has not been amended to include “Privacy” as a right nor the bench defined the term “Privacy” in an unambiguous manner.

This “interpretation” will stand unless a bench of more than 9 members holds otherwise in some point of time in future.

Whether any legislation comes under any “Reasonable Restriction” principle will be subject to another “Interpretation” by other benches which can be of a smaller size. We may recall that the Shreya Singhal case was an example of how the “Power to Interpret” was used by the Court to strike down a law that was meant for “Messages” sent from one person to another through e-mail or SMS by interpreting it as equivalent to “Publishing” of an information reaching out to the public.

Interpretations therefore may vary from time to time. This may not be bad since law has to keep moving forward but it also means that the law can be rendered inconsistent with different judges coming to different interpretations based on their own understanding of the problem.

Both the judges who earlier interpreted  “Messaging” as “Publication” in the case of Shreya Singhal case were also part of this bench and had seen “Chilling Effect” of Section 66A while coming down with a sledge hammer on the section.

Hence possibility of any law made by the Government even in future to be over turned if a Court so desires cannot be ruled out.

In view of this there is no significant impact of the decision on the Government except that there would be more litigation and challenges for every law made by the Government and the battle of the opposition to put hurdles in the path of growth contemplated by the Government will move from the Rajya Sabha to the Supreme Court.

Whether the Supreme Court will continue to entertain all politically motivated cases filed under the guise of “Privacy Rights” or exercise discretion needs to be seen.

Definition of Privacy

Despite some academic discussions on how to define “Privacy”, the final order did not include a clarity on “What is Privacy” as a “Right”.

When the Government legislates on “Privacy” in future, this lack of definition will come to haunt us since whatever the Government does can be challenged under the argument that it infringes  “Privacy” as a petitioner may try to interpret and the Supreme Court will keep hearing such petitions.

It was also interesting to note that some of the discussions were centered around “Information Privacy” as if “Right to control information related to a person” itself as the “Right to Privacy”.

Is name an information related to privacy? Is Mobile number an information related to privacy”, Is information on caste, sub caste, political affiliation, etc are information related to privacy have not been clarified in this judgement. They continue to be in the realm of uncertainty.

Is a “Phone Conversation” between A and B a joint property of “A and B”?, is recording of such conversation is not amounting to Privacy breach?, what about information between children and parents? family members? are they under constraints of Privacy?, Should we blindly follow the Privacy culture of the west or re-define it along with our own family customs and culture?

…all these remain as unclear as it ever was.

The health, financial and sexual orientation related information is presently identified as Sensitive Personal information under ITA 2000/8 and that continues to remain in operation.

In other words, even after this 9 member bench report, if we need to look at a “Definition of Privacy” we need to look at what is “Personal Information” under Section 72A or 43A of ITA 2008 or Sensitive personal information under Section 43A of ITA 2008 and the rules there under.

Hence ITA 2008 continues to define “Information Privacy” and not the Indian Constitution Part III nor this judgement.

On the other hand, Rights to Privacy outside the “Information domain” continues to remain an enigma since we donot have any new definition of what is “Privacy”. The earlier concept of “Right to be Left Alone” continues to be our guide.

When we look at Privacy as “Right to be left alone”, the main focus is on the “Physical Privacy” which was a subject matter of Kharak Singh judgement, a right against interference of physical space of an individual.

Cyber Privacy

This definition (Privacy as a Right to be left alone)  fails in the context of “Cyber World” where Cyber bullying and Cyber Stalking do occur without physical proximity.

Does “Virtual Proximity” is equal to “Physical Proximity”? …could have been one aspect that the bench could have considered but failed.

In the recent “Blue Whale Challenge” issue, does it constitute “Violation of Cyber Privacy”? … would have been another interesting debate which the 9 Judges missed.

While “Physical Privacy” can be defined as coming within “Touching distance” between two individuals, we still need to define whether “Touching distance” is zero cms or 5 or 10 centimeters and whether the distance has to be different for different body parts. Additionally, exception has to be made for Mumbai locals where physical privacy is most of the time less than zero cms.

“Cyber Privacy” depends on “Informational Proximity” and we can devise means of defining this. For example, in Facebook, “Friends” should have more accessibility than public. Similarly in Whats App group, the group members should have more proximity than e-mail contacts.

Hence some thing said in a Whats App group may not be a privacy invasion where as the same thing said in an e-mail could be. Some comment passed by a “Friend” in  Face book may not be a Privacy objection where as the same comment made by a non-friend could be.

Presently neither our Judiciary nor Police make distinction of who made a comment and whether the comment was made in a restricted group (eg Whats App) or in public place (eg Twitter, website) before charging them under defamation or obscenity etc. They will continue to make the same mistake under Privacy invasion also.

There was also no debate on Anonymity, Pseudonomity or “Regulated Anonymity” either as components of Information Privacy or as solutions to privacy protection.  Neither the petitioners nor the Government attorneys nor the advisers to the Judges brought out such issues as part of the Privacy debate.

The bench had an opportunity to debate such issues instead of simply debating earlier judgments, cutting and pasting the previous judgments into the current judgement and making it a 547 page volume.

Privacy as a Mental State

In my opinion, “Privacy” is a “State of mind”. A person may be amidst a crowd and still feel his privacy is not invaded. On the other hand he may be sitting in a closed room but filled with anxiety  that his privacy is being invaded.

“Mental Privacy” as a “State of Mind” of one individual is outside definition of the Physical definition of “Right to be left alone” or “Right to control dissemination of of privacy information”,.

It is also outside the definition of  Cyber Privacy as  “Keeping a certain virtual distance”.

It is for each individual to declare what are his/her mental privacy boundaries.

Section 66A of ITA 2008 which was scrapped,  did have a link to such concept but the Supreme Court which handled the Shreya Singhal Case did not understand it.

Most Cyber Stalking victims have a psychological condition where what is not “Privacy Invasion” for most may be considered by them as “Privacy Invasion”. This is a “Deemed Privacy Invasion” and would be a factor to be considered in the “State of the Mind” definition.

Under this concept Privacy boundaries would be different from a Man and Woman, Boy and Girl, Friend and Stranger, from a relative to a non relative, from a City bred person to a Villager and so on.

Using one yard stick for all would not be a good idea.

Without being able to define “Privacy” any attempt to grant a “Right” and call it “Fundamental” appears to be a fruitless exercise.

The Data Protection Legislation

Now when the new Data Protection law comes into being, it will again use the definition of “Personal Information” and “Sensitive Personal Information” as used in ITA 20008 and define what constitutes “Breach of Privacy of an individual through his information”. It will be a repetition of what is already there.

The Privacy of information in oral form or in hand written paper form would be outside the Data Protection Act or ITA 2008 and since there is no definition in the Constitution, we will not have any clarity on this issue.

In the absence of law for non electronic information, when a hand written diary of a person is accessed by another, he has to move the High Court or Supreme Court  as a “Constitutional Right” and claim compensation.

On the other hand, had the Nine Member bench advised the Government to amend the constitution and add “Privacy” as a specific right along with a definition, then there would have been progress in Privacy legislation in India. This was missed by the bench.

In this context, the 547 magnum opus is a great effort but of little practical utility for the Citizens.

Impact on Corporate Entities

The Corporate entities and Others who collect information from public in electronic form are today covered under ITA 2000/8. They have “Privacy Principles” equivalent to the international practices . ITA 2000/8 defines data protection in terms of a need to obtain consent and enter into a contract with the data subject.

The current judgement has no impact on this corporate handling of personal data.

One of the judges has briefly mentioned GDPR without naming it. But even he has not proceeded further to discuss what would be the impact of overlapping international privacy legislation on an Indian Corporate entity bound by the Indian laws on Privacy.

Does Indian law apply only to Indian subjects and international laws apply only to those international citizens based on their individual nationalities?.

It could be an interpretation. But the bench did not find it necessary to address such practical problems faced by the industry in India.

This is another point fo failure of this high profile decision.

Summary

Overall therefore I am disappointed with the Judgement and consider it as a “Lost Opportunity” to bring clarity to the Privacy regime in India.

It ended up as a reiteration of the current status as everyone understood and respected, in a fresh document updated for the current date.

( I welcome a debate on the subject and look forward to comments from other experts)

Naavi

Earlier Articles in the series:

Hashing the 547 pages of Privacy Judgement

Supreme Court Judgement on Privacy as a Fundamental Right… What changes?

Reference:

Part-I  (Chandrachud, Kehar, Agarwal, Nazeer)

Part -II (Chelmeshwar) 

Part- III (Bobde):

Part -IV (Nariman)

Part-V (Sapre)

Part -VI (Kaul)

Part -VII (Order)

Full Judgement


(This article is based on the copies of the Whistleblower’s letters which have now come to the public domain though they may be considered as not independently verified. In case there is any counter to the letter, we shall be glad to publish the same and make corrections as may be necessary…. Naavi)

The battle between the erstwhile CEO Mr Vishal Sikka supported by the Infosys Board on one side and Mr Narayana Murthy (NRN) supported by the erstwhile promoters of Infosys on the other side, has now reached a decisive stage with Mr Nandan Nilekani taking over as the de-facto head of the Company and Vishal Sikka leaving the Company.

Mr R.Sheshashayee the erstwhile Chairman has also resigned and Co-Chairman Mr Ravi Venkatesan has been relieved of his responsibilities. One more Director has also been relieved and Mr Vishal Sikka is being relieved immediately without waiting upto March 2018 as was originally announced.

Behind the current flare up, was an allegation of a serious mis-management and possible misappropriation of funds by Mr Vishal Sikka and a group of his close associates. This was alleged by an anonymous whistle blower who had written two letters to some of the share holders like NRN which was reportedly also copied to SEBI.  Since SEBI was aware of these letters as far back as February 17, 2017 (See report here) the reason why no action has been initiated so far is intriguing.

Mr NRN was upset that the Board had failed to exercise its due diligence and not taken action to prevent the alleged diversion of funds or necessary deterrant action after a complaint was received by the Board. After the Board released its letter accusing Mr NRN of being power hungry, interfering in management etc, it was clear that the Board was desperate and was acting childishly. It’s action was unbecoming of a professional Board of Directors. It was not difficult to speculate that this behaviour stemmed from a desperation born out of insecurity and guilty mind of the members of the Board.

The complaint had been made “Anonymously” by the whistle blower on two occassions. The complaint had alleged that the Panaya Deal in which an ailing company was taken over by Infosys, the valuation of the company was deliberately hiked to benefit Mr Vishal Sikka personally. Though the Board did order an audit subsequently, it had not made the audit findings public under the pretext that since the complaint was anonymous, there was no need for the audit report to be made public. There is a doubt that the audit itself may be a sham but the reluctance of the Board to make it public has raised further doubts.

This issue obviously became critical in the tussle etween NRN and the Board. In the meantime one of the associates of Vishal Sikka who was part of the Panaya negotiation and considered a very close confidant of Mr Sikka enjoying special privileges in the Company, resigned and walked away. Last week Mr Vishal Sikka also submitted his resignation leaving it to the Board to handle the unfinished battle with NRN and others.

Now the alleged letters written by the Whistle Blower have come to the public domain and raise serious questions not only on Mr Sikka and the Board of Infosys headed by Mr R Sheshashayee but also on regulators like SEBI which has remained silent on the issue so far.

Mr Ravi Venkatesan’s meeting of MR Arun Jaitely last week and a spate of planted stories in the media indicating a public relations exercise in favour of projecting Vishal as a victim of a greedy and haughty NRN had raised further doubt that Mr Sikka and his friends were trying to manipulate people in power. Perhaps Mr Jaitely and BJP may be facing some kind of pressure also from Israel diplomatically because one of their companies is part of the scandal.

Copy of the letters may be found here.

If one goes through the letters, it is clear that the matter is very serious and goes much beyond the “Corporate Governance” issue. It involves unfair payments to Mr Sikka both as fat salary hikes and payment of travel expenses, reimbursement of his personal security expenses etc. It also involves hiring of Sikka’s confidants and payment of huge severance compensation, approval of expenses without the approval of CFO for his select favourite employees etc.

This is certainly not only a “Corporate Governance Issue” and could be a board level fraud like Enron or Satyam and requires some immediate action from the regulators.

The first major allegation was regarding the severance pay paid to Mr Rajiv Bansal, the former CFO who left after the Panaya deal. As per the contract he was to be paid a severance pay of 3 months salary. But he was actually offered a severance pay of 30 months salary far in excess of what he was entitled to (according to the whistle blower’s complaint).

Which fool of a Corporate Director approve such deals unless there is a kickback for all the decision makers? … is a natural question that arises…..But the Infosys Board actually approved it.

This single instance was sufficient to indicate that there was a fraudulent attempt to siphon off share holder’s funds to the outgoing person in a indiscriminate fashion.

After Mr NRN raising his voice, it is reported that the actual payment made was less. Instead of Rs 17 crores proposed, Rs 5 crores was paid to the outgoing employee. But the attempt to pay an excessive amount was real and the Board approval was also real. Hence an Attempt to defraud the company was real.(As per the Whistleblower’s letter).

The speculation therefore is that Rajiv Bansal was sought to be paid “Hush Money” so that he would not go public with the irregularities in the Panaya deal which was over valued just to facilitate kickbacks. The Whistleblower’s letter has full details about what has reportedly transpired between Rajiv Bansal and the Board.

Under these circumstances, an immediate investigation ought to have been ordered by SEBI. But it has failed for reasons it needs to explain. The fact that SEBI is keeping quiet about this does not show SEBI in good light. The fact that the Finance Ministry under Mr Jaitely is also keeping its mouth shut indicates that there is a conspiracy in sweeping the fraud under the carpet and there could be a need for a Court intervention without which politicians and bureaucrats may not do justice.

Possibility of Tampering of Evidence

The whistle blower has also indicated the source of evidence to support his allegations which are a direct charge that the Board of Directors are guilty of serious corporate frauds. He says that there are many e-mails in which evidence can be found.

However since no action has been taken so far, there is every possibility of evidence having been erased compounding the financial frauds with Cyber Crimes which need immediate forensic investigation by a reliable authority.

It is presumed that the e-mails would be in the servers of Infosys only and they have to be now considered as potential evidence in a potential fraud investigation. Any deletion of the incriminating e-mails from the server would render the CTO and CISO of Infosys an accessory to the fraud for deleting and obliterating evidentiary files. Hence the IT department of Infosys should take immediate steps to archive relevant evidence in the custody of an independent custodian who would be outside the influence of the accused.

Modi Government may create another “Vijay Mallya mistake”

The two letters of the Whistle blower have been with SEBI for some time now but SEBI is not interested in taking any action. This is a deliberate inaction that assists Mr Sikka. Now that his resignation has been accepted and his severance package determined, he would not have any reasons to visit India and will remain abroad outside the jurisdiction of Indian law.

Mr Ravi Venkatesan who met Mr Arun Jaitely recently after the resignation of Vishal Sikka could have pleaded with Mr Arun Jaitely to bury the fraud, citing some reason or the other. Mr Jaitely may also be considering the “Israeli angle” as a diplomatic reason to agree not to act at least for now so that Mr Sikka can reach safe havens.

As a result, like Mr Vijay Mallya, Mr Sikka will evade legal scrutiny in India.

Fortunately however, Infy ADRs are listed in USA and there is a possibility that US authorities may move in and take action even if SEBI can be silenced in India and Indian political system is amenable to being bent as required. Already, a class suit has been filed in USA and hence it will be difficult for Mr Vishal Sikka to escape scrutiny in US courts.

However it is necessary for SEBI to show that it is honest and cannot be bribed into silence. I therefore urge SEBI to immediately take all required action including securing of evidence to conduct an independent investigation to find out if the allegations are true.

Further it is also necessary for CBI/ED/Serious Frauds Division of MOF to join in the investigation. Any attempt to tamper with the evidence as we have seen in many other sensitive cases should be stopped by not delaying action.

In the past, the Finance Ministry has shown its adeptness only in bolting the stable after the horses have fled so that it can appear that action is being taken without actually hurting the accused. Same thing may happen even in the case of Infosys fraud.

This is time for Mr Modi’s Government therefore to show that any illegal acts in a Company leading to cheating of share holders which include many public bodies such as LIC and Mutual Funds would not be tolerated.

If no action is taken immediately, it could only mean that the Government is amenable to compromising with corruption in the private sector and this would not be in tune with the image of Mr Modi.

New Management under Mr Nandan should not fall into a trap themselves

As regards the new management under Mr Nandan, I would like to place a word of caution.

There will be a temptation not to go public with all the murky things which has gone behind the scene since the the apparent problem has been removed with Mr Sikka and some Board members going out. Some corporate and legal advisers of the Company will certainly advise Mr Nandan to forget the past and focus on what needs to be done to regain investor confidence and client confidence.

There is no doubt that focusing on new business related issues are important. But it is also not possible not to take action when a Corporate fraud appears to have been committed.

But, if Mr Nandan and his team fail to take action, then they will be guilty of the same offence which the erstwhile Board was guilty of… remaining silent on fraud which is a “Passive assistance” to the fraud.

We may note that Mr Rajiv Bansal who could have been a whistle blower earlier, chose to accept a settlement and became part of the suppression of the fraud exposing himself to being considered as an accomplice to the fraud.

Similarly, not taking action on Vishal Sikka and some of the Board members either for the sake of fear of reputation loss or as a matter of courtesy etc, will make Mr Nandan and his new team  also guilty in the eyes of law of shielding the offenders.

It will also provide a good defense to Mr Sikka in the US Courts where the defense would be “Even the new management did not consider that there was any serious irregularities and allowed Mr Sikka an honorable exit without any disciplinary proceedings”.

There is therefore no alternative to Mr Nandan  but to initiate strict disciplinary action against Mr Sikka and be seen as taking all steps necessary to bring the culprits if any to book.

Any other decision would be a mistake.

We shall keep watching how the situation develops.

Naavi

In continuation of our previous article on the “Hashing of the Privacy Judgement” we can now look at the six pieces of individual judgement and the end notes in each of these judgement s that can be considered as “Judgmental Conclusions not forming part of the final order”. This is the second level of the 547 page judgement that we can try to explore.

Before penning down these end-notes, the judges who authored their respective parts of the judgement have presented pages and pages of observations basically recollecting the earlier judgements. Technologists should appreciate the huge efforts involved in “Cutting and Pasting” from volumes of judgements from the early part of the last century to the current days not only in the honourable Supreme Court but also other Courts as well.

Many of these judgements were from other qualified Judges mostly by smaller benches or subordinate Courts. Hence the current consolidation represents an over riding of earlier contrarian opinions and brings the development of Jurisprudence on Privacy Rights in India to a mile-stone stage.

In particular, two judgements namely M.P Sharma (1954) and Karakh Singh (1964) judgements were declared as over ridden. the first – M P Sharma v Satish Chandra, District Magistrate, Delhi1 was rendered by a Bench of eight judges and the second, in Kharak Singh v State of Uttar Pradesh was rendered by a Bench of six judges. These decisions, contained observations that the Indian Constitution does not specifically protect the right to privacy. They were  based on the principles expounded in A.K.Gopalan Vs State of Madras (1950) which construed each provision contained in the Chapter on fundamental rights as embodying a distinct protection. This principle had already been over turned by an 11 member bench in Rustom Cavasji Cooper v Union of India.(1970)(Popularly known as the Bank Nationalization Case).

Hence part of this 9 member bench in this case which can be referred to as the Puttaswamy case was only reiterating that M P Sharma and Kharak Singh  Judgements had already been over ridden in the Cooper judgement if we had not realized it. Since Cooper Judgement was a 11 member bench, there was no way this 9 member bench could over turn it. Had the CJI wanted it to be over turned, he would not have constituted a 9 member bench at all. Hence it was known from the beginning that M P Sharma and Kharak Singh judgements were out of contention and Cooper was in.

The consequence of the Cooper decision according to the Chandrachud (Part I) part of the judgement is that a law which restricts the personal liberties contained in Article 19 (Freedom of Expression) must meet the test of permissible restrictions contemplated by Clauses 2 to 6 in relation to the fundamental freedom which is infringed.

These restrictions are stated as follows:

Nothing in sub clause (a) of clause ( 1 ) namely that  All citizens shall have the right to freedom of speech and expression; shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause 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… etc

In this background, we can now concatenated all the end notes in the Six parts of the judgement as follows.

Part-I  (Chandrachud, Kehar, Agarwal, Nazeer) : Conclusions: 

1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on whether a right to privacy would arise from any of the other provisions of the rights guaranteed by Part III including Article 21 and Article 19. The observation that privacy is not a right guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is overruled to the extent to which it indicates to the contrary.

2 Kharak Singh has correctly held that the content of the expression ‘life’ under Article 21 means not merely the right to a person’s “animal existence” and that the expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a person’s home or an intrusion into personal security. Kharak Singh also correctly laid down that the dignity of the individual must lend content to the meaning of ‘personal liberty’. The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled.

3

(A) Life and personal liberty are inalienable rights. These are rights which are inseparable from a dignified human existence. The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution;

(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within;

(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognised and guaranteed by the fundamental rights contained in Part III;

(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution nor is the Court embarking on a constitutional function of that nature which is entrusted to Parliament;

(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty;

(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being;

(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted. Technological change has given rise to concerns which were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. Hence the interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features;

(H) Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them; and (I) Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual.

4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy would be read subject to the above principles.

5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data. Since the Union government has informed the Court that it has constituted a Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with appropriately by the Union government having due regard to what has been set out in this judgment.

Part -II (Chelmeshwar) 

Justice Chelmeshwar has not recorded any separate para as “Conclusions”. Hence his conclusion is contained in the final order only. He has generally agreed with the conclusions arrived at Part I.

Part- III (Bobde):

a. The ineluctable conclusion must be that an inalienable constitutional right to privacy inheres in Part III of the Constitution. M.P. Sharma and the majority opinion in Kharak Singh must stand overruled to the extent that they indicate to the contrary.

b. The right to privacy is inextricably bound up with all exercises of human liberty – both as it is specifically enumerated across Part III, and as it is guaranteed in the residue under Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation curtails

c. Any interference with privacy by an entity covered by Article 12’s description of the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III freedoms the interference affects.

Part -IV (Nariman)

This reference is answered by stating that the inalienable fundamental right to privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of  India.

M.P. Sharma (supra) and the majority in Kharak Singh (supra), to the extent that they  indicate to the contrary stand overruled.

The later judgments of this Court recognizing privacy as  a fundamental right do not need to be revisited.

These cases are, therefore, sent back for  adjudication on merits to the original Bench of 3 honourable Judges of this Court in light of the  judgment just delivered by us.

Part-V (Sapre)

Justice Sapre also has not captioned any paragraph as a “Conclusion” but has identified two specific points of reference and went ahead to give his views there on.

They are

(1) whether the law laid down in the case of M.P.Sharma and others vs. Satish Chandra, District Magistrate Delhi & Ors., AIR 1954 SC 300 and Kharak Singh vs. State of Uttar Pradesh & Ors. AIR 1963 SC 1295 insofar as it relates to the “right to privacy of an individual” is correct and

(2) whether “right to privacy” is a fundamental right under Part III of the Constitution of India?

His views are

1) I entirely agree with their reasoning and the conclusion on question No. 1 (given by others)

2) ..my answer to question No. 2 is that “right to privacy” is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law….I also hold that the “right to privacy” has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law.

Part -VI (Kaul)

Justice Kaul has also not specifically noted any “Conclusion” but has made a few important observations.

I am in agreement with the view of Dr. D.Y. Chandrachud, J., who in paragraphs 123 & 124 of his judgment, states that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected.

Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.

If we observe all these concluding remarks together, the majority opinion which is “Unanimous” is that “Privacy is a Fundamental Right subject to Resalable Restrictions”.

There are many other observations buried inside the pages of this judgement which could be quoted in other litigations in due course as ” views of a Judge in the famous Puttaswamy case”. These will however be “Observations not forming either individual judgements or the Final Order” and will be seen as the third level of what this judgement implies.

Observations which are not part of the final order or individual conclusions may have a limited practical judicial value since they have been deliberately omitted in the conclusions or the final order.

Other observations such as the one on LGBT rights etc are not majority opinions and not also part of the order. Aadhaar has not been specifically commented upon since another bench is anyway looking into it.

Now, the next question that we need to discuss is what will be the take home for the stake holders on account of this Puttaswamy judgement?

Judges are happy about the excellent media coverage that they have got because of this judgement. They have got as much TRP as the media channels. Constitutional experts who practice in High Courts/Supreme Courts are happy that there could be a number of cases they can file directly at the High Courts and Supreme Courts and enjoy locking up our judicial system in a plethora of litigations. Academicians will be happy with the bundle of case laws that can be discussed and re-discussed in class rooms and conferences. It is a Win-Win-Win situation for all.

But at the end of this short term celebration, we need to examine the impact of this judgement on the real stake holders of “Privacy” which we shall explore in subsequent article.

There are three different stake holders to this “Privacy Issue” namely

a) The Citizen of the Country who should feel that he has a “Right to Privacy” in whatever manner the Constitution understands it.

b)  The Government which makes laws and uses services such as Aadhaar which may have an indirect association with the principle of “Privacy”

c) The business entities which use services that have a direct and indirect association with the principle of “Privacy”.

Let’s continue our debate…after a break…because we may have some thing more in the interim to discuss on Infosys Saga….

Naavi

Hashing the 547 pages of Privacy Judgement

Posted by Vijayashankar Na on August 26, 2017
Posted in Cyber Law  | No Comments yet, please leave one

The 9 Bench judgement of the Supreme Court on “Privacy as a Fundamental Right” following the petition of Justice K.S.Puttaswamy and Others, runs into 547 pages of discussion which makes a great material for law colleges as teaching material on a number of earlier judgements. Some of the judgements such as  M P.Sharma, Kharak Singh, Maneka and Cooper have been referred to repeatedly and final opinion of the 9 member bench rendered as the final wisdom applicable until another day when a 11 member bench may review and over turn the current finding. Probably this may not happen in our life time and hence this judgement can be considered as a judgement that will be etched in stone for the time being.

It is however also important for us to understand the “Essence” of the entire discussion that is presented in the judgement without being confused with the thoughts that ran in the minds of each of the judges when they wrote their judgement.

It is fashionable to hail the Judgement as “Historic”, “Path Breaking”, etc., and let us also add that the “Words of Wisdom will be etched in stone for times to come”.

However, we also need to consider what is the “Net Effect” of this judgement and does it make any significant difference to our life. If so, the benefits have to be identified and presented separately. If not, we need to consider if all this hype was worth the paper in which it was written on.

The Judgement has been presented in 7 parts including the last partwhich is the “Order” signed by all the 9 judges.

Part I (Pages 1-266)  is the common judgement written by four Judges namely Justices  Jagadish Singh Kehar, R.K. Agarwal, Dr Y.Chandrachud, and Abdul Nazeer.

Part II (Pages 267-310) is the judgement of Justice Chelameshwar.

Part III (Pages 311-350) is the judgement of Justice S.A. Bobde.

Part IV (Pages 351-472) is the judgement of Justice R.F. Nariman.

Part V (Pages 472-496)  is the Judgement of Justice Abhay Manohar Sapre and

Part VI (Pages 497-543) is the judgement of Justice Sanjay Kishan Kaul.

Part VII (pages 544-547) is the order signed by all Judges.

In reading the judgement we need to recognize that Part VII is the operating part of the judgement and all other 542 pages are reflections preceding the final order. Some of the individual judgements may express some “Conclusions” at the end of their parts which can be considered as more than “Reflections” in the body of the individual judgements. In interpreting the judgement, we should try to avoid being confused with “Reflections” and “Individual Conclusions” with the “Order”. “Individual Conclusions not also reflected in the Order” (if any) may be collated to find out if they constitute a “Majority Conclusion” or not. If it is a majority conclusion, it may have greater value.

Keeping this view, let us first record here the final order which is the operating part of the Judgement.

It is as follows:

The reference is disposed of in the following terms:

(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;

(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;

(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.

(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

The entire 547 page judgement therefore has just one line of gist namely that in India, “Right to Privacy” is protected as an intrinsic part of “Right to Life and Personal Property” under Article 21 and as part of the freedoms guaranteed by Part III of the Constitution.

This is the hash value of the judgement as per Naavi algorithm!

We need to then start debating on what difference does this judgement make to the life of

a) An Individual on the street who is the common Citizen whose “Right to Privacy” is being defended by the battery of 9 judges.

b) The Corporates who need to struggle with Data Protection obligation under ITA 2000/8 and steer clear of the liabilities under Section 43A or 72A in particular and many other sections of ITA 2000/8 along with the GDPR, HIPAA and a host of international laws that affect the lives of an Indian Registered Corporate entity.

c) The Government which has already made many laws such as Aadhaar, Right to Information, Section 66A of ITA 2008 (now scrapped) and need to make many more laws in future to carry on its Governance amidst the opposition of political parties not in power some of whom like Kapil Sibal was part of influencing this judgement

Let’s try to do it in the future posts.

[Disclaimer: The objective of this discussion is just to add another view point for the academic debate.

It is admitted and declared that these are the views of an ordinary citizen of the country and not an expert in the Indian Constitutional law.

It is also not meant to praise or criticize the judgement in question nor the Government of the day or the opposition though it  may appear so in parts.

It is an opinion on a matter of grave importance to the development of Jurisprudence in India in the spirit of the presumed “Right of Free Expression” in our Constitution as it exists today with more than a century (101*) of amendments since its inception, most of them by the parties who are not in power today but sincerely tried since independence to change the face of India so that they could get more and more votes from the Indian public by dividing the country which was already divided and profess to continue to do so in future also]

Naavi

Reference:

Part-I  (Chandrachud, Kehar, Agarwal, Nazeer) Part -II (Chelmeshwar)  Part- III (Bobde): Part -IV (Nariman)
Part-V (Sapre) Part -VI (Kaul) Part -VII (Order) Full Judgement