In 2017 a nine-judge bench of India's Apex Court unanimously held that the Right to Privacy is a Fundamental Right under the Constitution. The right was placed under Article 21 particularly and Part III of the Constitution. Many previous cases of the Supreme Court, such as MP Sharma, Kharak Singh and ADM Jabalpur, were overruled, and this judgement became precedent for upcoming landmark judgements such as Navtej Singh Johar.

This article aims to see the Right to Privacy in a post-Puttaswamy era, and the same High Court cases from 2019 have been selected, discussed and analysed. The judgments in this survey touch on various aspects of privacy such as data protection, autonomy, dignity, freedom of choice, surveillance, search & seizure, informational privacy and phone tapping.

The critical issue in each case has been identified and then an analysis of the judgement is made in light of the KS Puttaswamy judgement. An effort has been made to understand how Privacy is being understood and dealt with by our High Courts with the help of these selected cases.

Raju Sebastian & Ors. v. Union of India & Ors. (Kerela High Court)

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Raju Sebastian v. UOI [1]deals with Informational Privacy. In this case, the Division Bench of the Kerela High Court held that demand asking for bank statements and income tax details would violate the Right to Privacy as such demand fails the test laid down in KS Puttaswamy[2].

Brief Facts
The Appellants have licensed petrol retailers. The Respondents of the case were Oil Corporations including Bharat Petroleum Corporation Limited, Hindustan Petroleum Corporation Limited and Indian Oil Corporation Limited. There were dealership agreements between the parties under which the Appellants had issued circulars asking the retailers to submit their bank statements, income tax returns and sales tax returns.

Appellants argued that demanding such information violated the Right to Privacy as the information was private and personal information. The companies, on the other hand, contended that as per the agreement, they had the rights to demand the information to ensure that no benami transactions were being made and they also argued that their demands were not against the Right to Privacy as the information they required was pertaining only to their dealership. The Single Judge Bench of the High Court ruled in favour of the Respondents and found no violation of privacy. The appellants then went to appeal against the judgement.

Key Issue:

• Is the demand for bank account statement, income tax returns and sales return violative of the Right to Privacy?

Analysis of the judgement
The Court first concluded that the relationship between the bank and the account holder is fiduciary. The details in a bank statement of a person and private and personal. Income tax returns and sales tax returns are also private. Any action to disclose such information would be a breach of privacy. The court did not accept the respondent's argument about the demand being made just in relevance to the information about the dealership.

The Court then applied the three fold test laid down in the Puttaswamy case[3]. It is well settled in the leading judgement that "no person can be deprived of his life or personal liberty except in accordance with the procedure established by law". The Right to Privacy does have limitations but those limitations have to be reasonable and under the first test, the legality of limiting the right must be proved. The Court found no law that could justify the respondent's demands.

The Court also took cognizance that the respondents have not relied on any statutory basis for making the demands that they did. It was held that the Corporations' demand did not have a legal justification and their reliance on a contract with the appellants cannot be a sufficient basis to be an exception to the Fundamental Right to Privacy. It was observed that a contract cannot be used to infringe upon an Individuals rights as the contract is not a law.

The Court held that the first test laid down in Puttaswamy had failed, so there was no need to look into the two further tests. Thus, by applying the test laid down in Puttaswamy, it was found that there was a violation of privacy.

Filling the gaps
Though the Court was right in identifying how the test must be applied and the first legality test failed, the Kerela High Court failed to apply the test thoroughly as was envisioned by the author of the three fold test. In his judgement, Justice Chandrachud used "and" and not "or" for the three tests, which would suggest that all the three folds must be enquired into.

An invasion of life or personal liberty must meet the three-fold requirement of:

1. legality, which postulates the existence of law.
2. need, defined in terms of a legitimate state aim; and
3. proportionality which ensures a rational nexus between the objects and the means adopted to achieve them[4]

The Kerela High Court only applied the first test and did not find it necessary to look into the following two tests which to some extent means that though the judgement is a correct judgement nevertheless is incomplete.

Cochin Institute of Science and Technology v. Jisin Jijo (Kerela High Court)

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Cochin Institute case[5] deals with Autonomy as an aspect of Privacy. In this case a Division Bench of the Kerela High Court held that the freedom to choose educational institutes is a facet of Right to Privacy.

Brief Facts
The Appellant in this case is an engineering college affiliated under APJ Abdul Kalam Technological University. Students from the college wanted to transfer to other colleges under the same University. The students contended that they wanted to seek transfer due to the lack of amenities and infrastructure and because many college teachers had joined new colleges after resigning from the Appellant college.

The college authorities denied the students transfer and denied to issue NOCs. A single judge bench of the High Court ruled in favour of the students and held that the college cannot compel them not to transfer. The Appellant then challenged the court's judgement in this appeal.

Key Issue:

• Can the right of the students to choose their educational institution be curtailed?

Analysis of the Judgement
The High Court did not acknowledge the procedural requirements set for a student to seek transfer, however the procedure cannot be a statutory legal basis from restricting transfer of students. The norms which the college was relying upon were found to be non-statutory. The Court did not find any legitimate legal authority or basis under which the Institute can deny the students transfer to the colleges they desire.

The court in this case opined that right to choose college is an aspect of Right to Privacy under Article 21[6]. In spirit of the Puttaswamy judgement the Court chose to see the right of a student to choose their institution as a "Right of a person to individual Autonomy". The High court highlighted personal choice and preferences of an individual as being integral to the Fundamental Right under Article 21[7].

The Court in this decision upheld Justice RF Nariman's judgement in which he enlisted privacy of choice as one of the three aspects of Right to Privacy in the Indian context.[8]

Way Forward
This judgement was a short order of only four pages yet it is a progressive judgement which showcases the wide scope of Right to Privacy. In layman's understanding Privacy might just come across as a word that simply means non disturbance. However our Courts have interpreted and elaborated the term as a gate of freedom which only opens up further doors to a multiverse of individual freedoms. This judgement not only applied the test of the landmark 2017 judgement but also depicted how right to privacy can be applied in multiple aspects and is not a right which can be limited easily.

X v. State of Uttarakhand (Uttarakhand High Court)

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This case of X v State of Uttarakhand [9]deals with bodily integrity and dignity. This case affirmed the intersectionality with which our Fundamental Rights are to be read. This case portrayed how Right to Privacy can be located at the intersection of Article 15[10] and Article 21.

Brief Facts
The petitioner is a transwoman who underwent Gender Reassignment Surgery(GRS) and thereafter identified as a woman. The petitioner was raped and wanted to file an FIR under Section 376 of the IPC[11]. However the Police chose to file the chargesheet under Section 377 [12]because Section 376 is available only for women and it was denied that the petitioner is a woman.

The petitioner presented certificates from her doctor indicating that after her GRS she was now a female. The State however argued that the declaration of gender should come from a competent authority. The Petitioner then approached the High Court in a petition to be treated as a woman.

Analysis of Judgement
This pre-dominantly dealt with the NALSA case[13], and the High Court went to lengths to discuss the concept of sex, gender, psyche, biological tests, psychological tests and Queer Rights.

For the purpose of this particular project paragraph 16 of the Judgement becomes relevant. In the relevant paragraph the Court cited Justice AK Sikri's reference to the NALSA case as follows:
Not only this, the judgment in NALSA's case has been upheld by the Hon'ble Supreme Court in another landmark judgment, of right to privacy, in the case of K.S.Puttaswamy (supra). In paragraph 96 of the judgment, it was observed as hereunder:
96. NALSA indicates the rationale for grounding a right to privacy in protecting gender identity within Article 15. The intersection of Article 15 with Article 21 locates a constitutional right to privacy as an expression of individual autonomy, dignity and identity.

NALSA indicates that the right to privacy does not necessarily have to fall within the ambit of any one provision in the chapter on fundamental rights. Intersecting rights recognise the right to privacy.

Though primarily, it is in the guarantee of life and personal liberty under Article 21 that a constitutional right to privacy dwells, it is enriched by the values incorporated in other rights which are enumerated in Part III of the Constitution.

Footprints of Past leading to a Progressive future
The foundation of this intersectionality lies in the great dissents that were cited in the Puttaswamy Judgement. Justice Fazal Ali dissented in the AK Gopalan case [14]and was of the opinion that fundamental rights are not isolated but have a common goal of protecting life and liberty. In this great dissent, the idea of not limiting ourselves to a narrow textual reading of the Constitution but actually seeing the constitution as a living breathing document whose organs interact and intersect with each other was founded. The dissent of course later became the correct law in Maneka Gandhi case[15].

The Uttarakhand High Court has referred to the same intersectionality and inter-constitutionality that Justice Fazal Ali, Justice Subba Rao and Justice HR Khanna had envisioned in their 'three great dissents' in their respective judgements in the AK Gopalan case, Kharak Singh [16]Case and the ADM Jabalpur case[17].

The Uttarakhand High Court has subtly observed how even though Article 15 and Article 21 respectively talk about to Right to Equality and Right to Freedom respectively which might appear as two separate and isolated rights. However, the Right to Privacy is such that it is not just found in Article 21 but also at the junctures where dignity and identity of an individual are so intertwined with gender that even being acknowledges as a woman becomes a matter of right to life and liberty.

The petitioner in this case was not just fighting a case against the heinous crime of rape but also another crime in which she was being denied her right to herself and her gender identity which was so intrinsic to her right to life. This view taken in this judgement is a perfect example of why the 9-judge bench in Puttaswamy was reluctant to concretely put Right to Privacy under one particular Section and instead chose to lay emphasis on how cases of privacy would and should be decided on a case-to-case basis.

Vinit Kumar v. Central Bureau of Investigation (Bombay High Court)

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This case of Vinit Kumar [18]deals with surveillance, data protection, search and seizure and phone tapping aspects of Right to Privacy. In this case the proposition that illegal phone tapping is violative of privacy was accepted. The case majorly relied on the 1997 landmark PUCL judgement [19]which was also upheld in the Puttaswamy case. This case is not only important for the aspects as mentioned earlier of Privacy but also is an important case from the perspective of limiting State action, penetration and intervention in the lives of individuals.

Brief Facts
The petitioner was accused of bribing bank employees. The CBI relied on telephonic conversations of the petitioner to prove the case against the petitioner. The petitioner argued that the orders directing the interception of his telephonic conversations was violative of privacy, ultra vires to the IT Act and against the holdings of the PUCL case. The petitioner then approached the High Court of Bombay in a writ petition to quash the orders directing intercepting of phone calls.

Key Issue:

• Is illegal tapping of phone calls violative of Right to Privacy?
• Can the interception of phone calls by the CBI be an exception to Right to Privacy?

Analysis of Judgement
The impugned orders for tapping in this case were given based on 'public safety'. It has been held earlier in the PUCL case which was later upheld by the Puttaswamy case that phone tapping is a violation of Right to Privacy and an order for interception can only be issued under Section 5(2) of the IT Act [20]in situation of public safety or public emergency.

The High Court in this case held that the CBI could not justify resorting to the phone tapping in the interest of 'public safety'. The CBI failed the test laid down in PUCL case.

The Court then went into the 'Test of Proportionality and Legitimacy' as was penned by Justice SK Kaul in his concurring judgement.

Test: Principle of Proportionality and Legitimacy
490. The concerns expressed on behalf of the Petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:

1. The action must be sanctioned by law;
2. The proposed action must be necessary in a democratic society for a legitimate aim;
3. The extent of such interference must be proportionate to the need for such interference;
4. There must be procedural guarantees against abuse of such interference."[21]

It was observed that the directions laid down in PUCL case were in consonance with the aforementioned test and it was held that the CBI's impugned order did not satisfy the test either.

Violation and Accountability
The major outcome and takeaway of this case in the author's opinion is that by this case the Bombay High Court has sent a message to the world that Privacy is not something which is to be taken lightly. A high authority such as the CBI cannot just violate an individual's Right to Privacy in the name of 'public safety'.

The Right to Privacy might be a Right with limitations but to fall under an exception to violation the tests laid down must be satisfied. Only in exceptional situations can a person's privacy be forsaken and the Courts will ensure that the Right is not violated as per the whims and fancies of the government.

State of Kerela & Ors. v. Shyam Balkrishnan & Ors. (Kerela High Court)

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This case of Shyam Balkrishna [22] deals with surveillance, search and seizure and bodily integrity aspect of privacy. The Kerela High Court held that the police action of searching an individual's residence without following procedure would amount to violation of privacy.

Brief Facts
The petitioner was arrested by the police because of suspicion of being a militant Maoist. The petitioner was stripped in the police station and his house was also searched by the police. There was no material evidence of being involved in any illegal activity. A single judge bench in a previous decision had ordered the State to pay damages to the petitioner. The State then went in appeal against that judgement.

Issue:

• Were the actions of the Police Authority violative of Right to Privacy of the petitioner?

Analysis of Judgement
The Court held that the actions of the police in searching the residence of the petitioner without following the CrPC [23]was unjustified. The Court also goes on to observe that even if the police's action was ultimately aimed at achieving a good end. Still, such illegal means cannot justify an action when Fundamental Rights are being compromised.

So the Court has made a strong observation about how the State cannot just walk over Fundamental Rights by pointing out to a larger aim which its action is intended towards. The Court clarified its position that if an accusation is made on the state for violating a fundamental right then the Court will scrutinise whether the action was strictly required or not.

The Court in this case looked into proportionality because they did agree that the aim of battling maoist militancy in the area was a legitimate goal that the police had but the Court hold that there has to be a balance and proportionality and the State cannot simply infringe Right to Privacy in the name of maintaining peace and order. Perhaps if the Police had chosen a less regressive approach with the petitioner the court could have accepted the less intrusive and more proportionate approach.

Shashimani Mishra & Ors. v. State of Madhya Pradesh & Ors. (Madhya Pradesh High Court)

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The case of Shashimani Mishra [24]deals with autonomy and dignity aspects of Privacy. The High Court by its judgement held that the State cannot intervene and intrude an individual's right to privacy whose act is not illegal.

Brief Facts
There was a news report that an IPS officer had kept the dead body of his father(Kulamani Mishra) in his residence. Owing to the news report the State Human Rights Commission had passed an order which directed the Police to enter the residence and determine whether the corpse was kept or not. The Petitioners aggrieved by the order filed a petition seeking the setting aside of the order.

The Respondents argued that they had a medical certificate from a Hospital which declared Kulamani Mishra to be dead. Whereas the petitioner's case is that Kulamani Mishra is not dead and is undergoing Ayurvedic treatment. The petitioners argue that the State cannot infringe with their right to privacy by entering their house on basis of a newspaper report.

Key Issue:

• The High Court was to decide whether the State is violating the petitioner's right to privacy.

Analysis of Judgement
Quiet interestingly the High Court chose to decide this case from the standpoint of the respondent and presumed that the person in question has in fact died. After the presumption of death the question which the court chose to look at was whether keeping a dead body an illegal/unlawful act. The Court went on to great lengths and discussed the concepts of lawfulness, morality and societal norms.

The Court basically went out of its way to discuss how even if the petitioner is keeping a dead body it cannot be an unlawful act because in a democracy individuals are allowed to act outside societal norms. The court accepted the act of keeping a dead body as revolting but did not consider it to be illegal. The Court then held that since it does see any unlawfulness on part of the petitioners so the State does not have grounds to enter the petitioner's residence and invade their privacy.

Taking one step forward only to take two steps backwards
It is absolutely correct that State cannot enter the houses of individuals and intrude with their privacy. The view taken by the High Court regarding a need for an illegal act to violate privacy is also an accepted position. However the Court in this case chose to form its judgement on an assumption of a person's death. The death of the individual was a disputed fact and the petitioner's case was that the person was not dead.

But the court chose to go beyond the facts in front of itself and gave a judgement on the basis of morality and societal norms which in the author's opinion was never the fact in issue. The court should have established rather than assumed if the person was in fact dead(they do not do so in the judgement) and then went on to apply the test laid down in Puttaswamy to see if the order of the state was violative of right to privacy.

It seems to the author as if the court in this case did read a plethora of texts on morality and sociology but did not read into Right to Privacy and the principles laid down in Puttaswamy otherwise the approach taken by the court would have been a lot different.

R Annal v. State of Tamil Nadu (Madras High Court)

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This case of R Annal v State of T.N. [25]deals with Informational Privacy, Data Protection and Surveillance. The Madras High Court in this case gave a judgement that enforced a teacher to either get AADHAR or quit the job.

Key Issue:

• Is mandatory AADHAR enabled biometric attendance violative of Right to Privacy?

Analysis of Judgement
The Single Judge Bench of the Madras High Court in its judgement has talked about a lot in detail except for the issue under which the petitioner approached the Court. The Court in its judgement has turned a blind eye to the arguments made by the petitioner and the precedent and principles laid down in Puttaswamy case.

The Court opines that Puttaswamy cannot apply in this case because the petitioner is a teacher who is bound by service rules and thus cannot go against the State.

16. The concept of public employment in the Government is of contractual in nature. The Public servants while accepting the offer of appointment, made a declaration that they will abide by the Service Rules and other conditions imposed by the Government of Tamil Nadu for the betterment of the Administration.

This observation would raise the further question of whether an individual loses his Fundamental Rights merely because entering into a contract with the government?

The Court then in the very next paragraph goes on to elaborate on how Rights are subjected to duties.

17. Undoubtedly, the Right to Privacy is to be protected. However, such right is subject to the performance of duties and responsibilities towards the public by a public servant.

Then the court in its judgement leaves two options for the petitioner.

21. The introduction of such system are done in a public interest and to improve the efficiency level of the public administration. This being the policy decision taken by the Government, the writ petitioner cannot question the same and it is for her to take a decision either to continue her services or to leave the job. Contrarily, the petitioner cannot question the very policy of the Government, which is introduced in the public interest to improve the public administration, more specifically, in Government Schools.

Then the Court goes on in multiple paragraphs justifying how the State is forced to resort to such measures of biometric attendance because the government school teachers were not doing their jobs properly and in order to improve the education in India such measures have to be taken. The Court even makes remarks on tax payers' money and corruption in the system but fails to accept nevertheless question the matter of privacy in the case.

Writing Judgements after not reading Judgements
The Madras High Court's decision ignored the fundamental rights that are guaranteed by the Indian Constitution. It results in a breach of Article 21 of the Indian Constitution as well as the right to privacy. It displayed arbitrariness because it went against the "doctrine of proportionality," which is regarded as a key test to be met whenever a person's fundamental rights are restricted.

The five judge bench of Supreme Court in 2018 had especially made it a point to strike down Section 57 of the AADHAR Act because the provision allowed for demanding AADHAR. The objective was of AADHAR was laid down as to empower the underprivileged members of society by providing them with an identification and enabling them to access the advantages and subsidies that the government provides for them.

The High Court's understanding of AADHAR and its enabled biometrics is in contrast to the spirit of the constitutional bench's judgement. There is no reasonable nexus between how enforcing mandatory AADHAR enabled attendance lead to betterment of government schools.

Also by the judgement the court has not only ignored the Right to Privacy under Article 21 but also Article 19(1)(g) [26]which guarantees a right to profession. The Court has voluntarily chosen not to follow the path laid down in Puttaswamy and give a judgement based on self-made arguments and visions that were not even in question.

Conclusion
"No Article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and the correction needed for interpretation of these provisions".- Justice Krishna Iyer

We can see from the aforementioned cases that various High Courts have had multiple approaches to the matter of Right to Privacy. While all the Courts do acknowledge the existence of Right to Privacy, a very few Courts go on to apply the tests laid down in the Puttaswamy judgement to answer the privacy question.

Many courts have even denied a right to privacy without going in to the matter at all. However it must be applauded that a number of High Courts have gone in length to adjudicate upon cases using the principles and tests that were laid down by the nine-judge bench.

Privacy as a right is so deeply interwoven in our Fundamental Rights that it will be used in most cases where individual freedom is at risk. Presently we can see how in the Karnataka Hijab ban case there are arguments being made in the Supreme Court regarding Right to Privacy.

It is no doubt that Privacy is a right that needs protection and guarantee but also the exceptions laid down make it a limiting right which also seems prudent.

In conclusion cases of Right to Privacy are cases in which one thing is of utmost importance – that is which lens will the court choose to look at Right to Privacy with and subsequently decide matters. Afterall Fundamental Rights are like a Kaleidoscope of arguments and Right to Privacy is a rather polychromatic image.

End-Notes:

1. Raju Sebastian & Ors v. Union of India & Ors., 2019 SCC OnLine Ker 2884.
2. K.S Puttawswamy v. UOI, (2017) 10 SCC 1.
3. Id
4. K.S Puttawswamy v. UOI, (2017) 10 SCC 1 ¶ 188 (H).
5. Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC OnLine Ker 1800.
6. Indian CONST. art 21.
7. Id.
8. K.S Puttawswamy v. UOI, (2017) 10 SCC 1 ¶ 364
9. X v. State of Uttarakhand, 2019 SCC OnLine Utt 1097
10. Indian CONST. art 15.
11. Indian Penal Code 1860 § 376.
12. Indian Penal Code 1860 § 377.
13. NALSA v. Union of India, (2014) 5 SCC 438
14. AK Gopalan v. State of Madras, AIR 1950 SC 27
15. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248.
16. Kharak Singh v. State of UP, AIR 1963 SC 1295.
17. ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
18. Vinit Kumar v. Central Bureau of Investigation & Ors., 2019 SCC OnLine Bom 3155
19. People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
20. Information Technology Act 2000, § 5 cl.2.
21. K.S Puttaswamy v. UOI, (2017) 10 SCC 1 ¶ 490.
22. State of Kerela v. Shyam Balkrishnan, 2019 SCC OnLine Ker 2158
23. Code of Criminal Procedure 1973.
24. Shashimani Mishra & Ors. v. State of Madhya Pradesh & Ors., MANU/MP/0435/2019
25. R. Annal v. State of Tamil Nadu, 2019 SCC OnLine Mad 1272
26. Indian CONST. art 19. cl.1(g).