A Critique on the right to Privacy in Alternative Dispute Resolution
: ANIL XAVIER
The Supreme Court of India by a 9-Judge bench has delivered a landmark judgment in “Justice K S Puttaswamy (Retd.) and another v. Union of India and others” [Writ Petition (Civil) No. 494 of 2012] on 24th August 2017, where it was held that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution of India (hereinafter referred as “privacy judgment”).
The judges were of unanimous view that Privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable. This was accepting the view of Warren and Brandeis, “The Right to Privacy” [Harvard Law Review (1890), Vol.4, No. 5], where it is stated that as legal rights were broadened, the right to life had “come to mean the right to enjoy life – the right to be let alone”.
The judgment has analysed the nature of fundamental rights and recognized that fundamental rights, in other words, are primordial rights which have traditionally been regarded as natural rights. In that character these rights are inseparable from human existence. They have been preserved by the Constitution, this being a recognition of their existence even prior to the constitutional document. It was held that Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.
The Supreme Court went on to hold that right to privacy is an element of human dignity, stating that the sanctity of privacy lies in its functional relationship with dignity. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.
This verdict opens the gate of academic and intellectual debates as to what this really means and how does it affect our lives?
In this paper, I am considering the impact of a person’s option to choose any mode of ADR (Alternative Dispute Resolution) mechanism like mediation or arbitration for resolution of his dispute, so as to preserve his right to Privacy.
The Arbitration & Conciliation Act, 1996 (hereinafter referred as “ACA”) recognizes the autonomy of the individual in deciding the way in which his dispute has to be resolved. It gives him the authority to decide all the basic tenets of dispute resolution, viz., WHO should resolve it (choosing the mediator or arbitrator), HOW it should be resolved (law/rules applicable for the process), WHERE it should be resolved (Venue and seat) and WHAT should be resolved (matters referred for dispute resolution). Since the matters which could be resolved through ADR are basically rights in personam, ADR allows the party to choose a method which gives them complete confidentially of the subject-matter and the process. Since opting an ADR process is a deliberate decision taken by the parties to the dispute, it postulates the reservation of a private space for the parties, declaring the right to be let alone.
The Privacy judgment says that this autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy and protection from unwanted intrusion.
The parties are opting the process of ADR to make sure that dirty linen is not washed in public. They want total confidentiality and privacy about the facts or contents of the dispute. The Supreme Court says that Privacy protects the individual from the searching glare of publicity in matters which are personal to his life. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised.
But is this right to privacy protected when the settlement agreement under section 73 of the ACA or an arbitral award under section 31 of the ACA, which is the final outcome of a mediation or arbitration process is challenged before a court under section 34 of the ACA?
I do agree that the Supreme Court has said that like the right to life and liberty, privacy is not absolute. Any curtailment or deprivation of that right would have to take place under a regime of law. The procedure established by law must be fair, just and reasonable. The law which provides for the curtailment of the right must also be subject to constitutional safeguards.
Here the relevant law is the ACA. If we examine the provisions, which allow the courts to look into matters which have been referred to ADR, we know that section 5 makes it clear that no judicial authority has the power to intervene in those matters except where so provided in Part-I of the Act. This section clearly indicates the legislative intent to minimize supervisory role of the courts to ensure that the intervention of the courts is minimal. The specific provisions under Part-I, which provide those powers are sections 9, 34, 36 and 37. Out of this, sections 9 and 34 are more important, since the court gets the option to look into the facts of dispute, either to give an interim measure of protection under section 9 or when an award is challenged under section 34. Under section 9, normally the parties only provide a prima facie case to impress the court to get an order of interim protection. But under section 34, the court goes into the contents of the award and pleadings and write judgments upholding the award or setting aside the award, narrating the facts.
Here the question that I am posing is whether such a discussion on the facts and evidence of the case, which was subjected to an ADR method under the legitimate expectation of privacy is compromised or violated by the court? Is the right to privacy of the parties affected and the subject matter of the dispute thrown open to public causing unwanted intrusion?
The Supreme Court while considering the test for Privacy held that Privacy is always connected, whether directly or through its effect on the actions which are sought to be secured from interference, to the act of associating with others. So admittedly when the parties has opted to choose ADR expecting confidentiality to the process, discussing the same in the judgment and bringing it to public domain is definitely affecting one’s right to privacy. As discussed earlier any curtailment or deprivation of that right would have to take place under a procedure established by law. Does the ACA provide such a procedure to curtail that right to privacy?
In my view, it does not! Section 34 gives only 7 grounds for scrutinising the award. Out of these, 4 grounds relate to finding out whether a party was under some incapacity, whether the arbitration agreement is valid under the law, whether the party was given proper notice of the appointment of an arbitrator or of the arbitral proceedings and as to whether the composition of the arbitral tribunal or the arbitral procedure was in accordance with the agreement of the parties. These 4 grounds does not require the court to look into the facts or dispute which was resolved, but only the agreement between the parties and the procedural documents relating to initiation and process of arbitration. The other 3 grounds under 34 gives power to the court to see whether the arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matter beyond the scope of the submission to arbitration, whether the subject-matter of the dispute is capable of settlement by arbitration under the law and whether the arbitral award is in conflict with the public policy of India. For these grounds the court will have to definitely look into the facts of the case or dispute. But should they analyse and discuss the facts like dealing with the matter as if in an appeal, where the court can interfere on the findings of fact of the lower court? The Supreme Court has held in umpteen numbers of cases that the arbitrator is the sole judge of the quality as well as quantity of evidence and it will not be for the court to take upon itself the task of being judge of the evidence before the arbitrator.
So is it proper for the courts to discuss in detail the facts and disputes that were referred to mediation or arbitration, when the matter is brought before it under Section 34?
Can it be argued that when the parties take up the matter before the court under Section 34, they waive their right of privacy under the ADR process?
I think once right to privacy is included under fundamental right, it may not be possible. The Supreme Court in privacy judgment, relying on “Behram Khurshed Pesikaka v The State of Bombay” [(1955) 1 SCR 613] has held that fundamental rights have not been put in the Constitution merely for individual benefit, but have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. The court also relied on the judgment in “Girish Ramchandra Deshpande v. Central Information Commissioner” [(2013) 1 SCC 212] where it was held that if the information is personal and has no relationship with any public activity or interest or it will not subserve larger public interest, the public authority or the officer concerned is not legally obliged to provide those information. So it could be seen that the information of facts determined through mediation or arbitration cannot be disclosed to public.
When the Supreme Court has categorically declared that “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth and that such right remains with the human being till he breathes last and it is one of those cherished rights, which every civilized society governed by rule of law always recognizes in every human being and is under obligation to recognize such rights in order to maintain and preserve the dignity of an individual, it is a matter of concern as to whether the court under Section 34 can disclose those confidential information, which are confidential and the parties have a legitimate expectation of privacy. This assumes importance as the right to privacy is now recognised not only as a valuable right, but as a right Fundamental in Constitutional jurisprudence.
In such circumstances the court while dealing with a matter under Sec. 34 or 9 must be careful not to discuss the facts of the case in detail, but shall confine itself in deciding the legal aspects mentioned under Section 34.
It is just a vague point of view, but I am sure this judgment has opened up many new thoughts! As the Supreme Court has said, “The old order changeth yielding place to new”!
Article originally published in Live Law: Click here.
Anil Xavier is an advocate, IMI certified mediator and arbitrator. He is the President of Indian Institute of Arbitration & Mediation and the Vice-President of the India International ADR Association. The author can be contacted at firstname.lastname@example.org.