R. Rajagopal and Ors. Vs. State of Tamil Nadu and Ors. (1995)

Abstract

The Indian constitution guarantees fundamental rights that are justiciable upon infringement. Article 19 and Article 21 of the Constitution are important rights, they are the Right to Freedom of speech and expression and the Right to life and personal liberty. Under the provision of Article 21 Right to Privacy is enshrined. R. Rajagopal and Ors. Vs. State of Tamil Nadu and Ors. (Auto Shankar case) is one of the landmark cases which defined the scope of these Articles. Even though we have freedom of speech and expression, Art.19 (2) states that there can be reasonable restrictions. In this case, the Supreme Court of India gave a judgment regarding the powers of govt., application of reasonable restriction, and ambit of Right to Privacy

Facts of the case

A prisoner who was convicted of murder wrote an autobiography which discussed the involvement of senior officials and other government officials in his illegal acts. Meanwhile, he was sentenced to life imprisonment and was going to be hanged later. Before he was hanged he gave his autobiography to his wife with the knowledge of the prison officials. Later to get it published, his wife gave it to the petitioners (publishers) of this case. Before the publication of the book, the Inspector General of Prisons wrote to the publishers with the claim that the autobiography was false, that publication was against prison rules, and threatened legal action if they proceeded with publishing. The reason given by the prison authority for such an act was that the content of the book was defamatory.

Arguments of the parties

The arguments made by the petitioners were as follows:
• Right to freedom and expression is guaranteed by the Indian Constitution. Article 19(2) states as” …..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 concerning contempt of court, defamation or incitement to an offense.”. The autobiography that had to be published did not violate any of these sub-clauses.
• Auto Shankar being a citizen of India had Rights to publish his own book as it is a Fundamental Right.
• The book was given with the knowledge of the prison officials.
• Right to Freedom and expression has more power than Right to privacy, as it is a part of the Right to life and personal liberty unlike freedom of speech and expression which is a fundamental right in itself.
• The authorities had tortured by using the third-degree method on Auto Shankar (Gouri Shankar) to deny his authorship of the book before he was hanged.
• There was no defamation as truth is considered to be a defense in defamation.

Contentions made by the Respondents were:

• There was no proof as to whether the book was written by the convict because he was hanged to death before any confirmation on this matter could be made. There is a possibility that the publishers may have modified it.
• There is no proof that the book was given to the wife of Auto Shankar with the knowledge and authorization of Prison officials.
• The information given in that book is defamatory and untrue as there is no evidence to prove the events of involvement of government and public officials in his illegal activities.
• The respondents denied torturing the prisoner using the third-degree method.

Judgment

1. The court considered the Right of Privacy, as there might be defamatory statements that would affect the reputation of the officials. But it cannot stop the petitioners from publication until and unless the respondents have the proof to state otherwise. The respondents can file a case under defamation and claim for damages after proving their innocence.
2. No prior prohibition can be made by the authority even before the publication of the autobiography. The court held this aforesaid statement referring to an international case New York Times v. the United States.
3. It was held by the Supreme Court that Auto Shankar had the right to get his autobiography published as there was no malicious intention and the publication was not in violation of any provision.

Conclusion

This case has established the scope and application of Art.19(2) and the Right to Privacy. It clearly stated that the Right to freedom of speech and expression will prevail against the Right to privacy as it is the basic right. The petitioners of the case got full authority to publish the book without any changes and the State cannot prohibit, thus the right of the petitioners sustained.

^[1] https://indiankanoon.org/doc/493243/ (last vivsted 30^th October 2020)

^[2] (1971) 403 US 713

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Introduction

Today, every country in the world is fighting with the novel coronavirus diseases. Many people in the world have lost their lives after getting infected with this virus. The Government of every country has taken various measures to protect people getting infected form this deadly virus. The Government advised the citizens to maintain social distance and take proper precautions while they are out for some work. 

The Government of India had announced nationwide lockdown for 21 days in India after the outbreak of coronavirus in the country. The Central and State Government along with various healthcare officials, non-profit government organizations took various steps to protect the citizens and to slowdown the spread of COVID-19 in the country. After 21 days, the lockdown was extended by the Government because of the rise of the coronavirus cases in the country. During the second lockdown, the Central Government launched Aarogya Setu App, a contact tracing app through which the server will record the data of all the people who came in contact with infected people to limit the spread of coronavirus. It is an app which uses both GPS and Bluetooth to determine the location of the users, when and where the person came in contact with the infected person. The App collects various information of a person such as name, gender, age, profession, phone number, travel history, present location, access to the contacts and health status. Within few days, the app had 98 million downloads and was the fastest downloading app of all time. The App records all the data of the person and accessed by the Government whenever necessary. After the launching of the app, every company, local authorities, societies made it mandatory to download the app. The Government also made mandatory for the travelers to download the Aarogya Setu App while travelling through train or flight. The users had privacy concerns in the App as it is collecting personal data and tracking location with Bluetooth and GPS technology. Therefore, the question arises whether the App is invading the right to privacy of the citizen in the country. 

VIOLATION OF RIGHT TO PRIVACY

Privacy is an important concept in every life of the person. With the advancement of technology, it is necessary to protect and maintain privacy of each person. In our country, there is no proper data protection law in our country which legally protects the sensitive data of the citizens. With the existing legal provisions such as Information Technology Act, 2000, there is limited protection to the data of the citizens of India. Hence, there is very less protection to data privacy in our country. This issue was raised in the case of K.S. Puttuswamy v. Union of India, it was held that the privacy of the individual is an essential aspect of dignity. The ability of the individual o protect a zone of privacy enables the realization of the full value of life and liberty.^[1]

In this landmark judgment Justice DY Chandrachud laid down three fold test for encroachment on privacy- 1) There must be a law in existence to justify the encroachment 2) The intervention must be for fulfilling a legitimate state interest 3) The encroachment should not be disproportionate to the purpose.^[2]

Analyzing the App with the test stated in Justice K.S. Puttuswamy v. Union of India, it is seen that the App is not backed by any particular law but it has been made under Section 35 of Disaster Management Act, 2005 which gives the power to the Central Government to make rules whenever it is necessary. There is a legitimate aim to invade the privacy of a person in this case as it uses the information to suspect coronavirus patient and to trace that how many people had came in contact with the infected person. For this aim, there must large smartphone base which consist of 60-70% population as per the policy. But as per the India Internet 2019 report by IAMAI and Nielsen, the benchmark of smartphone is below the line^[3]. This shows that there is no connection between the aim of the State and the policy implemented by the State. This concludes that the App has failed the second test. While studying the test of proportionality, it is necessary to determine whether the said law is acting as a reasonable restriction in the fundamental right to privacy. In this case, the privacy policy of the App states that the Government is not liable for any unauthorized access of information. It also states that for the personal information can be used for  necessary medical and administrative interventions. But the policy also states that all personal information is stated in an anonymized manner. This shows that though the App stores the information in encrypted form but it does not guarantee that if the information can be used by any unauthorized user. Therefore, it does not pass the test of proportionality. As the App does not fulfill the criteria mentioned in the test, therefore it invades the right to privacy of a person and challenge stating that the encroachment is unreasonable. 

After few weeks of the launch of the App, there were many legal, privacy and security issues relating to the App. It is stated that the information can be used for medical and administrative interventions. This states that the personal information can be used by any department of the Government. There is no specified rules and regulations by the Government in the App regarding the security to protect the collected data. There is no proper legal framework to control the work of the App apart from privacy policy and terms of use. Apart from the legal issues of the App, there were many other security and technical issues regarding the App. The app will be able to provide reliable results only if 60% of the population will download the App but according to reports there are only 24% Indian population own a smartphone.^[4]Many questions were raised regarding the use of both location and Bluetooth, and not only Bluetooth as a source to track the users of the app because the geographic location can be misused by any unauthorized users. The App is not open source and it is not available to the public as there was fear to point flaws in the app’s development.^[5]The security issue is one of the major issues in the Aarogya Setu App. There was a person who had hacked the App and stopped it from gathering the data from GPS and Bluetooth. It was also stated by the India’s cyber security agency that there were many phishing attacks in the name of the App and it was at a rise during this pandemic situation. 

Recently, the Ministry of Electronics and Information Technology of India released Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020. In this protocol, the government has given certain clarifications regarding the app such as the data can be used by other departments of the Government. But the protocol did not the clear the fact of using both Bluetooth and GPS for tracking the users and also about the data collected and stored in an anonymized manner.  

CONCLUSION

Privacy is an vital aspect in an individual’s life. Both are protected and an intrinsic part of Article 21. Today, every country is fighting with the novel coronavirus disease and taking different measures in order to keep their citizens safe. One of the measure is the contact tracing app where the app tracks the users using GPS or Bluetooth or both. India also launched a contact tracing app named Aarogya Setu App which uses both Bluetooth and GPS for tracking the users. There were many legal flaws stated in the Aarogya Setu App main being the violation of fundamental right to privacy as per the test stated in the Puttuswamy case. Though the Government is trying to protect the citizens from coronavirus but it is also necessary to protect the privacy of every citizen in the country. The App has different privacy issues and it is important to resolve all the issues the data stored with the Government is for the public interest. The Government can make the App as an open source code and maintain the transparency with the citizens. It should also secure the data within themselves and do not share with the third party. With all these effective changes, the App will create a proper balance between security, privacy and the protection of public health. 

^[1] Justice K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1

^[2] Ibid.

^[3] India Internet 2019, Internet and Mobile Association of India, Nielsen, available at https://cms.iamai.in/Content/ResearchPapers/d3654bcc-002f-4fc7-ab39-e1fbeb00005d.pdf, (last visited on August 29, 2020)

^[4] Shashank Mohan, No Covid-19 silver bullet: Aarogya Setu endangers India’s Privacy and Its Usefulness is uncertain, May 12, 2020, available at https://scroll.in/article/961641/no-covid-19-silver-bullet-aarogya-setu-endangers-indias-privacy-and-its-usefulness-is-uncertain, (last visited on August 29, 2020)

^[5] Andrew Clarance, Aarogya Set App: Why India’s Covid-19 Contact Tracing App is Contraversial, May 14, 2020, available at https://www.bbc.com/news/world-asia-india-52659520, (last visited on August 29, 2020)

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