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Historic Hearing About Right To Privacy Begins In The Supreme Court

A bench of nine judges began hearing a case, which will have a far-reaching impact on the years to come and will, in effect, decide whether the right to privacy is protected and guaranteed by the Constitution of India.

The case has its origins in a challenge brought to the Aadhar Card Scheme, in which one of the major arguments had been that it violated the fundamental right to privacy of a person. In response, the previous Attorney General MukulRohtagi had questioned whether such a right was protected by the Constitution. He had submitted that early decisions of the Court in M.P. Sharma v. Satish Chandra (1954), decided by eight judges, and Kharak Singh v. State of U.P. (1963) decided by six judges had doubted the existence of the said right. He further argued that subsequently smaller benches of the court had upheld the right to privacy, notably in Gobind v. State of M.P. (1975), which were decided by two judges. In doing so, the Attorney General brought into question over three decades of decisions of the Court, which had affirmed the constitutional right to privacy. Taking note of his arguments, the Court referred the matter to a larger bench in August 2015.

On Tuesday, 18thJuly, 2017, a little less than two years after the reference was made, a constitution bench of five judges, headed by the Chief Justice of India, heard the case. Noting the current Attorney General’s submissions that the case had to be heard by nine judges, in order to determine the correctness of M.P. Sharma, which had been decided by eight, the Bench listed the matter for the next day.

The newly constituted nine judge bench began its historic hearing into the right to privacy the very next day, i.e., 19th July, 2017. A battery of senior counsels appeared for the petitioners, including GopalSubramanium, former Solicitor General of India, Soli Sorabjee, former Attorney General of India, Shyam Divan, ArvindDatar, Anand Grover and MeenakshiArora. They all argued that the right to privacy was well entrenched in the Constitution as a fundamental right and a key component of personal liberty, freedom of speech, equality, dignity and the freedom of conscience. They also argued that Kharak Singh was overruled by a bench of seven judges in the celebrated case of Maneka Gandhi v. Union of India (1978), which held that Articles 14 (right to equality), 19 (fundamental freedoms) and 21 (right to life and liberty) had to be read together.

The arguments will continue this week, when Union of India will respond[Justice K.S. Puttaswamy (Retd.) v. Union of India, Writ Petition(C) No. 494 of 2012, order dated 20.07.2017]

Major Court Decisions

i. Directions to implement Food Security Act: The Supreme Court passed a slew of directions directing the Central Government to properly implement in National Food Security Act, 2013 across the country. The Court held that it was a law passed by Parliament and the Union Government could not argue that the states were not implementing it. The Court directed the Secretary, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, to coordinate with all the state governments for the implementation of the Act, ensure that grievance redressal mechanisms were established, as well as State Food Commissioners and Vigilance Committees [SwarajAbhiyan(V) v. Union of India and Ors., W.P.(C) 857 of 2015, order dated 21.07.2017]

ii. Seniority not preserved for those choosing to be absorbed on deputation: The Supreme Court held that government employees who chose to be absorbed at the department where they served on deputation, could not preserve the seniority of their parent department. The Court was considering the claim of Junior Engineers of the All India Radio who had been deputed to the Electrical Wing of the Postal Department in 1996. They had agreed to a condition stating that they would be treated as new recruits upon their absorption in the new department, but their other benefits would be preserved [MrigankJohri v. Union of India, Civil Appeal No. 9316 of 2013, order dated 10.07.2017]

iii. Centre says states must take action against cow vigilantes: The Central Government told the Supreme Court that it did not support any cow vigilantes and that it was the responsibility of the states to keep them in check, as it was a matter of law and order. The Court gave the government time to put the statement in writing and file an affidavit before it [TehseenS. Poonawalla v. Union of India, W.P.(C) 754 of 2016, order dated 21.07.2017]

iv. Oversight Committee of Medical Council replaced: The Supreme Court allowed the request of the Central Government to replace the court appointed Oversight Committee of the Medical Council of India, with one, which was selected by the Government. The Committee will now be headed by Dr. V.K. Paul, Professor & Head, Paediatrics, AIIMS, New Delhi and comprise four other eminent doctors. The MCI will continue to have to seek approval of all its decisions from the Committee [AmmaChandravati Educational And Charitable Trust v. Union of India, W.P. 408 of 2017, dated 18.07.2017]

v. Original electronic evidence in Vyapam Scam to be produced before court: Taking note of the allegations of whistleblower,PrashantPandey, the Supreme Court directed the CBI to file a report of a forensic laboratory in Hyderabad before the special court trying the Vyapam Scam cases. Pandey had alleged that the electronic evidence had been tampered with by the investigation agencies, prior to the CBI taking over the investigation. The report obtained from the Gandhi Nagar Laboratory was based on this tampered evidence, which was led as evidence in the trial. After the direction of the Supreme Court, the original evidence will also be placed before the court [PrashantPandey v. Central Bureau of Investigation, W.P.(C) 418 of 2015, order dated 21.07.2017]

vi. Case against DMK veteran K.N. Nehru restored: The Supreme Court revived a criminal case of disproportionate assets under the Prevention of Corruption Act, 1988 against former Tamil Nadu transport minister and DMK veteran K.N. Nehru and his wife. The Court held that the order of the Madras High Court was premature. The allegations include that between 2006 and 2011 Mr. Nehru’s assets jumped from 2.8 Cr. to 18.5 Cr. [State v. K.N. Nehru, Criminal Appeal 1222 of 2017, order dated 21.07.2017].
vii. Centre directed to proceed against Tea Companies for recovery of wages:The Centre has been directed by the Supreme Court to proceed against tea companies under the Tea Act, 1953 for the recovery of wages for lakhs of workmen who lost their jobs with the closure of tea estates in Assam, West Bengal, Kerala and Tamil Nadu [International Union of Food Agriculture v. Union of India, Contempt Petition 16 of 2012, order dated 21.07.2017]

viii. Survivor of rape with low mental age cannot get benefit of child friendly law:The Supreme Court rejected the plea of a mother on behalf of her daughter, who has cerebral palsy, and had been raped, that she be treated in accordance with her mental age of 6-8 years, rather than her biological age of 38 years. This would have entitled her to a child friendly trial under the Protection of Children from Sexual Offences Act, 2012. The Court held that the law did not allow it to recognise her mental age, but to take into account only her biological age [X v. State, Criminal Appeal 1217 of 2017, order dated 21.07.2017].

ix. Insolvency proceedings against Essar Steel to continue: The Gujarat High Court refused to quash the decision of the RBI to initiate insolvency proceedings against Essar Steel Ltd., under the recent Insolvency and Bankruptcy Code, 2016. The RBI had issued a press release on 13.06.2017 directing banks to initiate proceedings against 12 companies, including Essar Steel, which had an outstanding of more than Rs. 5,000 Crores, with 60% or more were classified as non-performing assets. In dismissing the petition, the court noted that the proceedings were pending before the National Company Law Tribunal and that Essar Steel had debt of more than Rs. 45,000 Crores and NPAs more than Rs. 32,000 Crores [Essar Steel Ltd. v. Reserve Bank of India, SCA No. 12434 of 2017, order dated 17.07.2017]

x. GST on sanitary napkins challenged: The GST imposed on sanitary napkins was the subject matter of multiple challenges this week. In the Delhi High Court, a JNU student filed a petition stating that the imposition of 12% GST on sanitary napkins wasdiscriminatory and would adversely impact the health of women. The Court sought the response of the Government [ZarminaIsrar Khan v. Union of India, W.P.(C). 6034 of 2017, order dated 18.07.2017]. Another petition was filed in the Bombay High Court, which raised similar issues. The Government has been granted time to respond in this petition as well [Shetty Women Welfare Foundation v. Union of India, PIL 68 of 2017, order dated 20.07.2017]

xi. Predatory pricing case against Ola dismissed: The Competition Commission of India (CCI) dismissed a complaint that taxi aggregator app Ola was engaging in predatory pricing and abusing its dominant position in the market. The complaint was made by two Bengaluru based taxi operators Fast Track Call Cab Pvt. Ltd. and Meru Travel Solutions Pvt. Ltd. The CCI found that Ola did not have the ability to act independently of its competitors (including Uber) and thus was not dominant in the market and thus felt the case was without merit. It also noted that the low pricing strategy pursued by Ola facilitated them gaining higher market shares in a short span of time, it however refrained from examining its legitimacy as it felt the market was yet to mature and an intervention at this time would be disruptive [Fast Track Call Cab Pvt. Ltd. v. ANI Technologies Pvt. Ltd., Case No. 6&74 of 2015, order dated 19.07.2017].

xii. Finance Act, 2017 challenged: The Bombay High Court has sought the response of the Central Government on a challenge to the Finance Act, 2017. The Act was passed as a money bill but contained a large number of provisions relating to the reorganization of adjudicatory tribunals (Sections 156 to 189). The petition claims that these provisions were added to the Finance Act deliberately to avoid the approval of the RajyaSabha, which was not possible. Similar challenges are pending before the Madras and Gujarat High Courts [Tax Friends Association v. Union of India, PIL(L) 72 of 2017, order dated 20.07.2017]

xiii. Online sale of drugs to be regulated: The Central Government informed the Bombay High Court that it would soon establish an online portal where all online sellers of drugs and medicine would have to register themselves. The Court had directed to the Government in September last year to ensure adequate regulation, in light of the concerns raised in the case that restricted Schedule H drugs, under the Drugs and Cosmetics Act, 1940, were being sold without any regulation and with fake prescriptions [MayuriMithunPatil v. Union of India, PIL 170 of 2015, order dated 20.07.2017].

xiv. No Environment Compensation charge for pulses: The Delhi High Court has held that pulses would be considered essential food grain and vehicles carrying them would not be subject to the levy of an Environment Compensation Charge (EEC). The EEC had been mandated by the Supreme Court in October 2015 but had exempted certain vehicles carrying essential commodities – food grain and oil [Narela Food Processing Industries Welfare Association v. Govt. of NCT of Delhi, W.P.(C) 7211 of 2016, order dated 17.07.2017]

xv. Passports can be revoked only with sufficient cause: The Delhi High Court reiterated that a person’s passport could only be revoked if there was sufficient cause to do so. The Passport Act, 1967 only permits the revocation of a person’s passport in the interest of the sovereignty and integrity of India, security of India, friendly relations with another country or in the interests of the general public. The court held that the revocation of a person’s passport was a serious violation of their fundamental rights and could only be done on the above grounds [Sikandar Khan v. Union of India, W.P.(C) 5315 of 2017, order dated 06.07.2017].

xvi. FIR to be registered for corruption in resettlement of ex-servicemen:The Delhi High Court has directed the CBI to lodge FIRs in relation to allegations of corruption in the Directorate General Resettlement (DGR) in a case filed by the ex-service men. The DGR is responsible for training and finding employment opportunities for servicemen after their retirement. The allegations relate to the impersonation of ex-service men who were provided business in connivance with public officials [Lt. Col. Naveen Kumar Anand (Retd.) v. Union of India, W.P.(C) 602 of 2017, dated 20.07.2017]

xvii. Criminal proceedings against Shah Rukh Khan stayed:The Gujarat High Court stayed criminal proceedings against Shah Rukh Khan, which were initiated after a person died at the Vadodra railway station where a stampede like situation had developed when the actor was promoting his film Raees. The Court will examine whether the complaint sufficiently discloses an offence against the actor [Shah Rukh Khan v. State of Gujarat, SCA(Quashing) 5404 of 2017, order dated 20.07.2017].

(IPA Service)

Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.

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