Judges behind privacy verdict hail recall of Sanchar Saathi app order, flag issues

The confidential November 28 order to pre-install the app had sparked concerns around surveillance. Apple and Google, which own the iOS and Android operating systems, planned to push back against the order with concerns around privacy and system security weighing on their minds.

Justice A K Sikri, who in 2018 struck down certain provisions of the Aadhaar Act for violating the right to privacy and referred to the right in judgments years prior to the Puttaswamy verdict, analysed the directive through the “proportionality test” laid down in that very verdict. The test requires that any state intervention in privacy must be sanctioned by law, serve a legitimate aim and be the least intrusive means to achieve that aim.

While acknowledging that checking cybercrime is a “bona fide objective”, Justice Sikri said a compulsory mandate causes “direct infringement” of privacy. “It cannot be said that there are no other options to check cybercrimes,” he said. “If there are other methods to check these crimes, then a method should not be adopted which infringes the privacy or the fundamental right.”

Justice S K Kaul, who had authored a separate concurring opinion in the 2017 verdict that emphasised the right to control personal information, stressed that security tools must be voluntary. “It can’t be a compulsory insertion because that would, to my mind, be hit due to privacy being a constitutional right,” Justice Kaul said. He argued that a voluntary process must be preceded by “full disclosures” regarding what the user is exposed to.

However, Justice J Chelameswar, who had also delivered a separate concurring opinion in the privacy judgement, highlighted the severity of the current cyber threat landscape. Citing incidents of “digital arrest” and bank accounts being hacked, he argued that there is a “compelling” state interest to act.