None of us have a choice: Apex court on privacy issue

The question had arisen in the context of controversial comments by former Uttar Pradesh minister and Samajwadi Party leader Azam Khan following the 2016 Bulandshahr gangrape case.

Senior advocate Harish Salve, who is amicus curiae in the matter, told the court that the question was important in an era of growing privatisation. Explaining why he wanted the court to look into it, the senior counsel told the bench — also comprising Justices Indira Banerjee, Vineet Saran, M R Shah and S Ravindra Bhat — that he had once appeared in a matter challenging the user agreement of a social media giant. Those who accepted the user agreement were also unknowingly allowing it to read their messages, he said, adding this was challenged in court.

During the hearing, the social media platform’s “brazen reply” was “then don’t use our services”. Then the government gave a brazen reply, “in that case we will ask internet service providers to block you like they do in China”, Salve recalled. Following this, the rules were amended, he said, adding “when so many unsuspecting citizens use such services, the government is under obligation to ensure their dignity is protected”. Joining issue, Justice Bhat said “non-state entities exercise far greater power today”. He pointed out that there were even privately-owned cities in the US and such cities were coming to India too. Attorney General K K Venugopal said he was in agreement with Salve’s suggestion.

Justice Bhat gave the example of author Salman Rushdie. “Rushdie wrote something that was objectionable to the entire Islamic world. There were many protests even in India. There were many death threats following which he was given 24X7 security.” He added “today it may be vigilantes… or private individuals which may chill your speech” and asked “what is the state’s duty to ensure that fundamental rights are protected?” The AG said the Rushdie instance was a “different area”. Disagreeing, Justice Bhat replied, “It’s the same area. It’s the same right.”

“This is the era of privatisation,” remarked Justice Shah as Salve pointed out that the need for settling the question was never more important. “Can you tell youngsters write off your future in return for something…,” said Salve adding “don’t they have a choice?”

“None of us have a choice,” replied Justice Bhat, adding that the question of private entities was left unanswered by Justice P N Bhagwati in one of his judgments, wondering what was the need for it then. The court also agreed to examine Salve’s suggestion on whether persons holding high office can say whatever they want and then claim right to free speech.