Asking the Right Questions: The Supreme Court’s Referral Order in the Sabarimala Case

In April 2016, a three-judge bench of the Supreme Court had heard arguments in a PIL challenging the Sabarimala Temple’s practice of barring menstruating-age women (between the ages of 10 and 50) from entering the precincts of the temple. In a brief order delivered today, the case has been referred to a five-judge bench for adjudication.

As we have discussed previously on this blog, the Sabarimala Case is a particularly complex one, involving the interaction of statutes, government rules, custom, religious practice, and the Constitution. For a satisfactory adjudication of the case, therefore, it is important that the Court ask the right questions. As we shall see below, today’s referral order succeeds in that enterprise, and lays the foundation for a clear verdict on the constitutional issues involved.

Recall that the justification for excluding menstruating-age women from entry into the Sabarimala is grounded in religious custom and usage. What complicates the issue is that there is also an existing legislation: the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965. Section 3 of that Act stipulates that places of public worship must be open to all sections and classes of Hindus, notwithstanding any custom or usage to the contrary. Section 4 of the Act authorises persons in charge of places of public worship to make regulations for the “due performance of rites and ceremonies, with the proviso that the Regulations cannot discriminate against Hindus of “any class.” Acting under Section 4, in 1965, the Kerala Government framed certain rules. Rule 3 of these Rules deprived certain classes of people from offering worship, and Rule 3(b) included within this class “women at such time during which they are not by custom and usage allowed to enter a place of public worship.”  

Keeping in mind this statutory framework, we are now in a position to understand the issues involved in the Sabarimala Case. The first – and simplest – issue is whether Rule 3(b) is legally valid, given that Section 3 of the Parent Act – i.e. – the primary legislation – mandates that places of public worship must be open to all “sections and classes”. If women constitute a “section” or a “class” of Hindus, then clearly Rule 3(b), being subordinate legislation, is ultra vires the parent statute, and must fall. Consequently, the first question that the Court must answer is whether, for the purpose of temple entry, women constitute a “section” or a “class” of Hindus. To answer this question, the Court must undertake a historical examination of temple entry legislations, the kinds of exclusion that they were trying to combat, and the social movements that necessitated their enactment. While at the core of the temple entry movements was the exclusion of Dalits and other castes, it is also important to note that the root of such exclusion was ideas of ritual pollution and purity; notably, that is exactly the justification being offered for the exclusion of menstruating age women from Sabarimala. Consequently, if temple entry laws were framed for the purpose of making ideas of pollution and purity irrelevant to temple entry, then there is a strong case for including women – as a class – within their protective ambit.

Now, in the event that Section 3(b) is consistent with the parent Act, the larger question of constitutionality arises. The 1965 Act – and the Rules – are pieces of primary and subordinate legislation respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act and the Rules are invoked to justify the exclusion of women from the Sabarimala Temple, therefore, there is a clear violation of Articles 14 and 15(1) of the Constitution.

That, however, does not settle the issue, because the further argument is that the Act and the Rules merely codify the practice of existing religious mandates. These religious mandates, however, are grounded in something beyond merely the 1965 law: they are protected by Article 25(1) of the Constitution, which protects the freedom of religion. Or, in brief: the exclusion of menstruating age women is a religious mandate protected by Article 25(1) of the Constitution.

This raises a few difficult issues. The first issue is this: once the Kerala legislature passed the 1965 Temple Entry Act, then does there remain any independent right of places of public worship to regulate entry? Or, in other words, is the 1965 Act a “complete code” on the issue of temple entry? Readers will recall that a somewhat similar issue was at stake in the recent Triple Talaq judgment. The question there was whether the 1937 Shariat Act codified Muslim personal law, or whether it only recognised it. If it was the former, then if the 1937 Act was struck down as unconstitutional, the practice of triple talaq would go along with it; if the latter, however, then triple talaq was grounded not in a statute (which could be challenged and struck down for being unconstitutional), but was a part of “uncodified personal law”.

Consequently, the Court will have to decide whether, after the 1965 Act, it can be claimed that there exists an independent right under Article 25(1) to prohibit menstruating women from entering Sabarimala. If the Court decides that it cannot, then there is no further issue: insofar as the 1965 Act bans menstruating women from entering Sabarimala, it clearly violates Articles 14 and 15(1) (it may be argued that banning only menstruating women, and not all women, does not constitute sex discrimination; however, on this blog, it has repeatedly been pointed out how such arguments are flawed, and I will not rehearse them here).

However, if the Court holds that the claim can be made, then under existing Indian jurisprudence, it must ask a further question: is the banning of menstruating women an “essential religious practice” under Article 25(1), and is it consonant with the requirements of “public order, morality, and health”, to which Article 25(1) is subject. This will require the Court to go into the doctrines of the religion, and adjudicate whether the practice in question is essential, or merely peripheral.

Lastly, Article 26(b) of the Constitution guarantees to “religious denominations” the right to manage their own affairs in matters of religion. Two questions arise, therefore: do the worshippers at Sabarimala constitute a “religious denomination”? And is the question of temple access a question of “religion”? On the first issue, there exists substantial jurisprudence. My own suspicion is that in view of the fact that Sabarimala is governed by the Travnacore Devaswom Board (a State institution), and a State legislation, the religious denomination argument will not succeed. There is also a clear public element involved here (to an even greater extent than in the Bombay High Court’s Haji Ali Dargah decision).

The last sub-issue – whether temple access is a pure question of “religion” or not – appears straightforward, but is actually rather complex. This is because, historically – right from Ambedkar’s temple entry movements of the 1920s – issues of temple entry have always been framed as issues of civil rights, involving access to public spaces (for an account, see Anupama Rao’s book, Caste Question). Exclusion from temples has been understood to be an embodiment of social hierarchies and deeper social exclusions, and has been opposed in these terms. In fact, temple entry movements were so politically successful, that the Constitution contains a specific exception to the freedom of religion clause (Article 25(2)(b)) that categorically authorises the State to throw open religious institutions to all classes of Hindus. Consequently, a nuanced analysis might have to acknowledge that for historical, political and social reasons, the issue of temple access is no longer restricted to the purely religious domain, but is inextricably linked with civil status and civil rights.

In my view, therefore, the Court would have to answer the following questions in the Sabarimala Case:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

In its referral order, the questions that the Court has framed are as follows:

“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?”

While my own framing is almost exactly the reverse of how the Court has chosen to go about it, readers will note that the ground covered is virtually identical. One thing that is particularly interesting to note is that in Question 1, the Court refers not only to Articles 14 and 15, but to Article 17 as well. Article 17 bans the practice of “untouchability”. In framing the question, therefore, the Court has at least acknowledged the possibility that banning women on grounds of menstruation creates and perpetuates a stigma that is similar in character to the stigma faced by caste-untouchability (during the hearings last year, this argument was advanced by Ms Indira Jaising).

The invocation of Article 17 is crucial for another reason. In the recent Triple Talaq judgment, the dissenting opinion by Justices Khehar and Nazeer, after holding that triple talaq was an “essential practice” under Islam and therefore protected by Article 25(1), went on to hold that the phrase “subject to public order, morality and health and to the other provisions of this Part“, which prefaced the Article 25(1) right, could not make triple talaq subject to Articles 14 and 15(1). This was because these Articles only protected the individual against the State, while Triple Talaq was an issue between two private individuals. Note, however, that Article 17 is horizontally applicable – that is, it prohibits untouchability between private parties. If, therefore, the Court is to find that excluding menstruating women from temple access amounts to “untouchability” within the meaning of Article 17, then even if that exclusion is an “essential religious practice” under Article 25(1), it will fall. This, of course, is assuming that Khehar and Nazeer JJ’s views in Triple Talaq, on this point, were correct; my own view is that they were not.

Consequently, the Court’s framing of the referral questions has set up a host of fascinating constitutional questions. And at its heart, the issue is this: should the question of temple access be left purely to the discretion of religious heads, or is it something that should be governed by constitutional norms of equality and non-discrimination? In my view, given the role played by religion in private and public life in India, given how religious status is often inextricably linked with civil and social status, and given the unique history of temple entry movements in India, constitutional norms should apply, and the exclusion of menstruating women from Sabarimala should be stuck down.

In view of the importance of the issues involved, however, it is to be hoped that the Constitution Bench is set up swiftly, and the case heard and decided finally.

 

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Filed under Access to Religious Spaces, Article 15 (general), Equality, Essential Religious Practices, Freedom of Religion, Non-discrimination, Sex Discrimination, Sex Equality

Guest Post: Cracks in the Foundation – Two Fundamental Issues in the Puttaswamy Decision that threaten its legacy

(This is a guest post by Karan Lahiri, a practicing advocate based in New Delhi.)

[This essay assumes that the reader has read the 10-part series on the Puttaswamy decision on this blog]

The decision handed down by nine judges of the Supreme Court of India in Justice K.S. Puttaswamy v. Union of India has been received with much optimism. It is being seen as a milestone, not only in how it removes two unsightly stains on the Supreme Court’s legacy [i.e. the express overruling of A.D.M Jabalpur v. Shivakant Shukla (See Part IX), and the dismantling of Suresh Kumar Koushal v. Naz Foundation (See Part V]], but also in how it carves out the various facets of the larger – and more abstract – concept of privacy.

The edifice built by this judgment, however, has two deep flaws (both in Justice Chandrachud’s plurality opinion, joined by three other judges), which should not be lightly glossed over.

The first flaw is that there is a huge hole in the judgment, which looks distinctly like an Aadhar-shaped hole. Nowhere is this more apparent than Paragraph 181 of Justice Chandrachud’s opinion, where he discusses the idea of what constitutes a “legitimate state interest”, one of the three prongs of the test laid down by him to justify incursions into the zone of privacy: –

“Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes.[Emphasis supplied]

This idea is repeated in his conclusion: –

 “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.” [Emphasis supplied]

The idea expressed, in itself, does not seem problematic. Compare this, however, with the Union of India’s position at the time the matter was being referred to a larger bench (recorded in the interim order passed on August 11, 2015): –

“20. The learned Attorney General has further submitted that the Aadhaar card is of great benefit since it ensures an effective implementation of several social benefit schemes of the Government like MGNREGA, the distribution of food, ration and kerosene through PDS system and grant of subsidies in the distribution of LPG. It was, therefore, submitted that restraining the respondents from issuing further Aadhaar cards or fully utilising the existing Aadhaar cards for the social schemes of the Government should be allowed.”

It is almost as if the Union’s position on the legitimacy of Aadhar’s aims has been upheld, despite the narrow scope of the reference and the fact that the constitutionality of the Aadhaar scheme was not under challenge before this bench of nine-judges. Indeed, Justice Sapre, in his separate opinion, has rebuffed attempts by those challenging Aadhar to bring up the specifics of the Scheme in the following terms: –

“39) Some learned senior counsel appearing for the petitioners, however, argued that the law laid down by this Court in some earlier decided cases though not referred for consideration be also overruled while answering the questions referred to this Bench whereas some senior counsel also made attempts to attack the legality and correctness of Aadhar Scheme in their submissions.

 40) These submissions, in my view, cannot be entertained in this case. It is for the reason that firstly, this Bench is constituted to answer only specific questions; secondly, the submissions pressed in service are not referred to this Bench and lastly, it is a settled principle of law that the reference Court cannot travel beyond the reference made and is confined to answer only those questions that are referred.”

If, indeed, the bench was expected to cleave close to the reference when Senior Counsel appearing for the Petitioners attempted “attack the legality and correctness of Aadhar Scheme in their submissions”, then equally, it should not have overreached itself in endorsing a hypothetical government objective which, in effect, sounds a lot like the Union of India’s justification of the Aadhar Scheme. Depending on how smaller benches of the Court act in this future, this overreach, whatever the reason, might be seen by future generations as nothing short of sophistry.

The second flaw is the deployment of the “reasonable expectation of privacy” test in Justice Chandrachud’s plurality opinion, where he writes, under the heading “Essential Nature of Privacy”: –

“The lives which individuals lead as members of society engender a reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives… Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation.” [Emphasis supplied]

 This basically attempts to limit the privacy right of the individual to that, which, as a member of society, she can reasonably expect. The degree of privacy thus, which one can reasonably expect, is that which does not interfere with “the rights of others to lead ordinary lives”. The problems with this line of reasoning are twofold, one of which is textual and the other doctrinal.

1. The Textual Problem

The Constitution has already defined, in its text, the social interests or “the rights of others” that can be invoked by the State in justifying incursions into fundamental rights. For example, in a given case, if there is an interference with a facet of the right to privacy emanating from Article 19(1)(a), the only “reasonable restrictions” recognized are those contained in Article 19(2), “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”, which do not recognize any broader social or public interest. This is why Justice Nariman, in his separate opinion (which I personally feel is the one which is most doctrinally sound), writes that “when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed.” Justice Chandrachud’s opinion, however, uses these “rights of others” not merely to restrict the right to privacy, but to limit the very contours of the meaning of privacy. This is nothing but a variation of the Supreme Court’s notorious “balancing” test (critiqued on this blog here), where unenumerated public or social or community interests are used to restrict fundamental freedoms.

2. The Doctrinal Problem

The doctrinal inconsistency in Justice Chandrachud’s deployment of the “reasonable expectation of privacy” test lies in the fact that he uses it to limit the scope of an individual’s right to privacy based on “the rights of others”. However, this test, originating in American jurisprudence, has not been used in the United States to subordinate individual rights to amorphous social interests (“the rights of others”), but has been used to identify places where individuals can claim a Fourth Amendment right against unreasonable searches and seizures.

The test itself is traceable to the US Supreme Court’s decision in Katz v. US. The Fourth Amendment of the American Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In Olmstead v. US, this was read strictly to mean that an unreasonable search and seizure only occurs when there is a physical “entry” into the “houses or offices of the defendants”.

The decision in Katz untethered the Fourth Amendment from the home (reflected in its text which covers persons, houses, papers, and effects), moving beyond the idea that unreasonable searches and seizures could only happen when there were physical intrusions into a home or office. It is in this context, while reversing a conviction based on evidence gathered with a listening device attached to the outside of a phone booth, that Justice Potter Stewart observed that “the Fourth Amendment protects people, not places”. In his concurrence, Justice Harlan speaks of the “reasonable expectation of privacy”, connecting the Fourth Amendment protection afforded to people once again to the dynamics of spaces: –

“As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus, a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected,” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.

 The critical fact in this case is that “[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume” that his conversation is not being intercepted. Ante at 389 U. S. 352. The point is not that the booth is “accessible to the public” at other times, ante at 389 U. S. 351, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U. S. 253.” [Emphasis supplied]

 Therefore, the question that Justice Harlan was answering, purely in the context of the Fourth Amendment was ­– in what places does the Fourth Amendment protect people against unreasonable searches and seizures? His answer is, first, that this protection is available where the individual subjectively expects privacy. So, for instance, there would be no Fourth Amendment protection if a Federal Agent overhears a loud public conversation in a crowded restaurant, since the speakers do not expect privacy. The additional limb is that society must recognize as reasonable the expectation of privacy of an individual in that space. Therefore, even if the person speaking openly in a crowded restaurant expects not to be overheard, this expectation would be an objectively unreasonable one based on prevailing social standards, as opposed to, let us say, a reasonable expectation of privacy that would be objectively valid if a private conversation was taking place in an enclosed private dining area.

Justice Chandrachud’s opinion, emphasizing the “rights of others”, has used this test to limit the very meaning of the broader right to privacy using the “reasonable expectation” test, in a manner which is completely at odds with US jurisprudence. This is despite the fact that in the United States, this is a pure Fourth Amendment test, and is not used to adjudicate cases where a broader right to privacy is involved, as emerging from the “penumbras” of the Bill of Rights (à la Griswold etc.). Secondly, in the United States, this test is only used to analyze whether the subjective expectation of privacy in the context of unreasonable searches and seizures, in Fourth Amendment cases, is objectively valid within particular physical spaces, based on social mores surrounding such spaces. There are no “rights of others” being balanced against the right to privacy. In fact, in the US, the “rights of others” is not even an ingredient in the “reasonable expectation of privacy” test.

Therefore, in Katz, a Fourth Amendment claim can be made in respect of a conversation in a phone booth, a “temporarily private place” which, based on social standards is recognized as a space where “momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.” If Katz were to be decided based on the test which Justice Chandrachud has laid down, the Court would have ascertained the social interests or the “rights of others” involved, in order to determine whether a law enforcement agency could eavesdrop. So, for instance, the subject matter of the conversation or the identity of the defendant as a suspect could be used to justify an unconstitutional intrusion, perhaps based on a broad social interest in crime prevention. This is never what Justice Harlan intended when he laid down the reasonable expectation of privacy test.

Fortunately, in a case like Puttaswamy, where there is no single majority opinion rendered by five out of nine judges, what can be considered binding law must be arrived at by parsing the six plurality opinions, and understanding which propositions command the support of five or more judges, to form a determinative majority. Therefore, no proposition laid down in Justice Chandrachud’s opinion (on which a total of four judges have signed off, including Justice Chandrachud) can be considered to be binding unless supported by one of the other plurality opinions. A lot, therefore, will depend on what reading of Puttaswamy is advanced by future lawyers, and how future benches deal with it.

It therefore remains to be seen, in individual cases, whether these blemishes become mainstreamed, tarnishing the legacy of Puttaswamy, or whether they fade into oblivion.

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Judicial Evasion, Book Bans, and the Unreasoned Order

[Update: A previous version of this post mistakenly stated that the Supreme Court had dismissed the appeal in a single-line order. What the Court did was to state in court that it would not interfere with the High Court judgment, and indicate that there would be no detailed order. The updated post reflects this. Once the formal order is out, a separate post will be written.]

On this blog, we have discussed a phenomenon I have labeled “judicial evasion“: when the Supreme Court effectively decides cases without handing down a reasoned judgment on merits. In previous posts, we have examined two forms of judicial evasion: refusal to hear a case when status quo is to the benefit of one of the parties (in our cases, that party has been the government), and agreeing or declining to “stay” a lower court judgment. In both cases, ultimately, evasion is constituted by judicial inaction.

Judicial evasion, however, is a broader term, and an example of a case in which the Court acted – while also evading – is yesterday’s order upholding a ban on a book called Basava Vachana Deepthi, written by one Maate Mahadevi. Elsewhere, I have discussed in some detail the issue of book banning and the freedom of speech and expression, the Supreme Court’s deeply speech-hostile jurisprudence on this issue, and how – in my view – Courts should interpret the relevant legal provisions. This post, however, is about something else: it is about banning by evasion, and this should cause serious alarm.

The book was written in 1996. In 1998, it was banned by the Karnataka state government under Section 95 of the Code of Criminal Procedure, a provision that has its roots in colonial law, and authorises state governments to ban and forfeit books if it “appears” that they might violate certain provisions of the Indian Penal Code (such as sedition, hurting of religious sentiments etc.) Section 96 of the CrPC allows persons aggrieved by the State government order to approach the High Court for relief.

In 2003, the High Court of Karnataka upheld the ban. The High Court’s judgment is an extraordinary one, endorsing the complete subordination of the individual right to freedom of speech and expression to the vague and amorphous category of community sentiments. The apparent offence was that the writer – claiming religious inspiration in her own right – had changed the pen-name that had been used by the 12th-Century saint and social reformer, Basavanna, while authoring his “vachanas“, from Kudalasangama Deva to Linga Deva.

Now, one may ridicule the writer for having delusions of grandeur, and one may criticise her and hold her in contempt for attempting to use a famous historical figure to advance a personal cause. But it should be immediately clear that banning a book for this reason renders a right to free speech entirely worthless. This was not a case of religiously-motivated hate speech. This was not a case where someone was inciting violence or discrimination against a set of people on the basis of their religion. This was, on the contrary, a classic example of cultural dissent – an individual advancing her own interpretation of her faith, that was at odds with the prevailing and dominant view. If there is anything that the right to free speech and expression has to protect, it is this.

None of that weighed with the High Court. The High Court noted that:

“… the petitioner has absolutely no right to substitute that word by any other word which has the effect of changing the original script of the author. It it is changed, naturally it will affect the religious feelings and sentiments of certain community which holds said Vachanas of Lord Basaveshwara in its original scrip in high esteem and reverence.” (para 7)

It is unclear how the High Court arrived at a conclusion that the Petitioner had “no right” to substitute the pen name (at worst, she had a right which could be restricted). More notably, however, the High Court relied entirely on how a “certain community” would react to this text. There was no analysis on what, objectively, was problematic about the text itself. As I have argued elsewhere, this effectively gives the “community” (or what a Court considers to be a “community”) a complete and entirely subjectively-enforced veto upon the freedom of speech and expression. And if every community is granted its own personal veto, then having a guaranteed constitutional right to freedom of expression is quite pointless.

In fact, the Court went on to make a logical leap: Section 295A of the IPC – which was at issue – required not only insulting religious sentiments, but also that it be done with “malicious intent.” To prove malicious intent, the Court held – in logic that can only be described as viciously circular – that “… the petitioner says that it was done for a noble cause. But we do not find any such noble cause behind such wrongful act of the petitioner. In fact the petitioner herself says in her petition that “Kudalasanga” is nothing but “Linga.” if that is so, where is any justification for the petitioner to cause any such change in the Vachana of Basaveshwara. Therefore in our considered view the wrongful act done intentionally by the petitioner is without just cause or excuse. Therefore it is a malicious act.”

The “justification”, of course, was the petitioner exercising her constitutionally guaranteed right to freedom of speech and expression, but once again, that idea seems not to be on the Court’s radar very much. The Court then put a seal on this “reasoning” by observing that:

It may be pointed out that section – 295A has been intended to respect the religious feelings of certain class of persons and Courts have to be very circumspect in such matters and to pay due regard to the feelings and religious emotions and sentiments of different class of persons with different beliefs irrespective of the consideration whether or not they share those beliefs and irrespective of the consideration whether or not they are rational or otherwise in the opinion of the Court. The petitioner cannot impose her philosophy on others.”

But this is grotesque reasoning. In the view of the Court, the petitioner writing a book (that nobody is compelled to read) amounts to “imposing her philosophy on others”, but the State banning her book (so that nobody can read it) does not. In the view of the Court, it is not the right to free speech that must be respected whether or not the Court agrees with a particular act of expression, but it is community beliefs that must be respected by banning a book that the Court disagrees with.

When this case came up in appeal, therefore, one would have expected the Supreme Court to engage with this reasoning in some detail. This is especially the case for two reasons: first, book bans strike at the heart of free speech, one of the most important constitutional guarantees. A book ban is not like the rent control disputes or the transfer petitions that are heard by the Supreme Court on a daily basis. And secondly, the High Court judgment  – under the CrPC – was the first and only time that a Court had considered the issue. Consequently, when the case came up to the Supreme Court, it was not like a run-of-the-mill special leave petition, where multiple judicial fora had already adjudicated and decided the case. It was, effectively a first appeal, and there is a general rule that judicial fora ought to consider first appeals carefully and in detail.

The bench of Bobde and Rao JJ, however, heard the matter for four days, and then suddenly stated in open Court that they were not inclined to interfere with the High Court’s judgment, that they would not be writing any detailed order, and that there was no need for the parties to file written submissions or the authorities on the point.

Why did the Supreme Court do this? It is difficult to say; but nonetheless, the effect of what looks like being a minimalist order by the Court will be that there will be almost nothing one can engage with, disagree with, or critique. Although, in this case, the Court acted – that is, it passed an affirmative order dismissing the appeal and upholding the ban – in effect, what is happening is the same as what happens in the more classic cases of judicial evasion: the Supreme Court effectively decides a case with far-reaching constitutional consequences, which affects the fundamental rights of people, but gives virtually no reasons (or at best, inadequate reasons) for why it is doing what it is doing. And this is deeply problematic, because the authority of the Court is founded entirely on reason – reasoning from text, from statute, and from the Constitution, to arrive at a conclusion about whether and to what extent rights have been infringed in a particular case.

As I have written above, book bans are a very serious issue. If there is anything that raises important constitutional concerns in a democracy, it is the State’s power to censor speech. That the Supreme Court saw fit to uphold a ban without even reserving judgment and considering the issue in detail, is unfortunate; however, if this was to now become a regular feature, that would be truly tragic.

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The Supreme Court’s Right to Privacy Judgment: Round-up

The essays discussing the judgment of the Supreme Court in Justice Puttaswamy vs Union of India can be accessed in the following orders:

  1. Part I: Foundations — Examining how the Court answered the two referral questions placed before it.
  2. Part II: Privacy, the Individual, and the Public/Private Divide — Analysing the judgment’s focus on the individual, and its construction and critique of the public/private divide
  3. Part III: Privacy, Surveillance, and the Body — Discussing the first of the three aspects of the Court’s formulation of privacy: privacy as bodily and mental integrity.
  4. Part IV: Privacy, Informational Self-Determination, and the Idea of Consent — examining the second aspect of privacy – informational self-determination – and the role of individual consent in data collection programs.
  5. Part V: Privacy and Decisional Autonomy — Discussing the third aspect of privacy – intimate decision-making – and its impact on issues of minority rights and others.
  6. Part VI: Limitations — Excavating the legal standards laid down by the judgment on the issue of State limitations upon privacy.
  7. Part VII: Privacy and Free Speech — Examining what, if any, would be the impact of the judgment on the freedom of expression
  8. Part VIII: Privacy and the Right to Information — Examining what, if any, would be the impact of the judgment on the right to information.
  9. Part IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues — Discussing the judgment’s stand on some issues of constitutional interpretation
  10. Part X: Conclusion – the Proof of the Pudding — Arguing that Puttaswamy gives us a foundation for a progressive civil rights jurisprudence, but in the long run, its legacy will be determined by how the Court applies it in future cases.

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The Supreme Court’s Right to Privacy Judgment – X: Conclusion: The Proof of the Pudding

Maneka Gandhi vs Union of India is one of the most famous cases in the history of the Indian Supreme Court. It is the crown jewel of our constitutional canon, India’s answer to Brown vs Board of Education, the case that revolutionised the Court’s civil rights jurisprudence. It is the judgment that consigned the notorious A.K. Gopalan to the dustbin of history, inaugurated an era in which the Constitution’s fundamental rights were to be read in an integrated and holistic manner, and breathed life into the “colourless” due process clause of the Constitution.

But Maneka Gandhi did not win her case. Her constitutional challenge to Section 10(3)(c) of the Passports Act failed, and the Court accepted the Attorney-General’s “assurance” that she would be given a hearing about her passport being impounded. The operative order of the Court, which is rarely quoted, stated:

Having regard to the majority view, and, in view of the statement made by the learned Attorney-General to which reference, has already been made in the judgments we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal order. The passport will remain in the custody of the Registrar of this Court until further orders.”

Maneka Gandhi vs Union of India was the repentant Court’s mea culpa for its abdication during Indira Gandhi’s Emergency, the first concrete embodiment of its will to make amends, a precursor to the age of public interest litigation. Maneka Gandhi was the point at which the Court abandoned three decades of formalist interpretation, and inaugurated a new path where Courts would expand the rights of individuals against the State, instead of limiting or contracting them.

But neither the Court’s repentance, nor its ringing words about interpreting Articles 14, 19, and 21 together, and not even its inauguration of the substantive due process doctrine was of any use to the petitioners in the constitutional challenges to the preventive detention provisions of the National Security Act in 1980; or, in 1994, to the constitutional challenges to the TADA’s departure from CrPC safeguards such as confessions to police officers, upheld on the justification of fighting terrorism; or, perhaps most glaringly, to the constitutional challenge to the Armed Forces Special Powers Act a few years later.

What then did Maneka Gandhi transform, exactly? How could the TADA and the AFSPA have been upheld by a Court serious about atoning for what happened during the Emergency? Which anti-civil rights statutes were struck down on the basis of the interrelationship-of-rights theory, or on grounds of substantive due process? To take just three examples, after Maneka Gandhi, the Supreme Court continued to uphold book bans, (total) cattle slaughter bans, and “anti-sodomy” legislation. For all its grand words, Maneka Gandhi was more a continuum along a long history of the Court saying many wonderful things, but when it came to the crunch, deferring to the State and finding a “public interest” that justified the limitation of rights (two exceptions to this general rule are Selvi vs State and Mohd Arif vs Union of India). The history of the Supreme Court’s jurisprudence post-Maneka Gandhi warns us, therefore, that what matters more is not grandeur in words, but concrete application.

Justice Puttaswamy vs Union of India has said many wonderful things about the right to privacy. That needs to be acknowledged and praised. However, it is equally important to note that Puttaswamy was a case decided in the abstract. The State’s arguments were limited to advocating a strict, originalist reading of the Constitution, and the protean nature of privacy – weak arguments at best, even when made by excellent counsel. And in deciding upon the pure proposition of law before it, the Puttaswamy bench did all that it could have done in the context of the proceedings before it: declared that a fundamental right to privacy existed, grounded it in Part III of the Constitution, and laid down rigorous standards for the State to meet if it wanted to limit the right to privacy.

However, when future benches of the Court are called upon to apply Puttaswamy, it will not be quite so straightforward. There will be challenges to dragnet surveillance, where the State will claim that the only way to catch terrorists is to surveil the entire population, and will submit “evidence” in a sealed envelop to the Court. There will be challenges to DNA profiling laws, where the State will argue that everyone must give up their privacy to help in the national effort to detect and prevent crime. There will be challenges to data collection and data mining, where the State will argue that the loss of privacy is a small price to pay for the gain in efficiency.

This is predictable, because it has happened before, for the last sixty-five years. The law of sedition was upheld because the Court believed that the State must have the means of “preserving itself”, and freedom of speech was an acceptable casualty. TADA was upheld because the Court felt that police abuse was an acceptable compromise in the fight against terrorism. The Court did not strike down police surveillance in Gobind, despite holding that there existed a fundamental right to privacy. In PUCL, the Court did not even mandate a judicial hearing as a pre-requisite to telephone surveillance under the Telegraph Act. As the Court itself has reminded us many times, in the last analysis, individual interests must “yield” to larger social interests — and that effectively, it is the State’s prerogative to both define the social interest, and to prescribe the means towards achieving it.

But it is the very point of individual rights that they prescribe limits upon what the State can do to achieve its goals. In a world without the right against self-incrimination or a right to personal liberty, law and order would be much more efficient. In a world in which the State could ban books and organisations without judicial scrutiny, no doubt counter-terrorism efforts would be facilitated greatly. When you agree that individuals have rights, that there are some things that the State cannot do to them no matter how laudable the goal, you agree that there may well be a net loss of efficiency. And you agree because there are other values that exist apart from security, law and order, and efficiency in plugging leaks in welfare programmes. In his book about the Snowden revelations, Glenn Greenwald puts the point perfectly, when he writes:

Nations and individuals constantly make choices that place the values of privacy and, implicitly, freedom above other objectives, such as physical safety. Indeed, the very purpose of the Fourth Amendment in the US Constitution is to prohibit certain police actions, even though they might reduce crime. If the police were able to barge into any home without a warrant, murderers, rapists, and kidnappers might be more easily apprehended. If the state were permitted to place monitors in our homes, crime would probably fall significantly. If the FBI were permitted to listen to our conversations and seize our communications, a wide array of crime could conceivably be prevented and solved.

But the Constitution was written to prevent such suspicionless invasions by the state. By drawing the line at such actions, we knowingly allow for the probability of greater criminality. Yet we draw that line anyway, exposing ourselves to a higher degree of danger, because pursuing absolute physical safety has never been our single overarching societal priority. Above even our physical well-being, a central value is keeping the state out of the private realm – our “persons, houses, papers, and effects”, as the Fourth Amendment puts it. We do so precisely because that realm is the crucible of so many of the attributes typically associated with the quality of life – creativity, exploration, intimacy.

Forgoing privacy in a quest for absolute safety is as harmful to a healthy psyche and life of an individual as it is to a healthy political culture. For the individual, safety first means a life of paralysis and fear, never entering a car or an airplane, never engaging in an activity that entails risk, never weighing the quality of life over quantity, and paying any price to avoid danger.” 

In its long history, the Supreme Court has invariably favoured the claims of the security State over the rights of individuals. And the crucial point is this: Puttaswamyin itself, is not going to change that. The standards that the Court has laid down – “legitimate purpose”, “necessity”, “proportionality”, and “procedural safeguards” – are commodious ones. For a Court still steeped in the institutional logic that upheld TADA and AFSPA, it is but a short step to argue that (for example) dragnet surveillance is constitutional because, well, anti-terrorism.

There is no doubt that without Puttaswamy, we would have been far worse off than we are today. And there is also no doubt that Puttaswamy has built a foundation for a new jurisprudence of civil rights. But we must all be equally clear about the fact that the real task will begin now: it will begin with the first bench that is asked to apply Puttaswamy to a concrete case where privacy runs up against reasons of State, and it will continue in the months, years, and decades to come. The task is not simply to apply Puttaswamy, but to use Puttaswamy to craft a genuinely progressive civil rights jurisprudence, where the original constitutional compact – that individual rights are not subordinate to “public good”, “social good”, “public interest” (or any other variant of the phrase) – is restored. And that, now, is the responsibility of citizens, of lawyers, and of course, of the judges who will be called upon to adjudicate privacy and liberty claims in the wake of this judgment. For judges, indeed, it is a challenge: to be true to the animating spirit of Puttaswamy, and make the hard decision to tell the State that although its aim may be laudable, its motives unimpeachable, and its method beneficial, under the Constitution of India, it nonetheless cannot have what it wants.

In that sense, the legacy of Puttaswamy is open. It could become what it promises to be – the foundation for a transformative civil rights jurisprudence. Or it could become only a rhetorical lodestar, a beautiful and ineffectual angel, beating in the void its luminous wings in vain.

Time will tell.

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The Supreme Court’s Right to Privacy Judgment – IX: Living Constitutionalism, Natural Law, and Other Interpretive Issues

The Puttaswamy case came to Court because the Indian Constitution does not have a textually guaranteed right to privacy. Each of the six judgments spent considerable time establishing why, despite the constitutional text, privacy was a fundamental right. Many different arguments were advanced, and in the first two posts in the series, we discussed one of them: privacy was a fundamental right because without it, effective enjoyment of textually guaranteed rights such as the freedom of speech, the freedom of association, personal liberty, and so on, was simply impossible. Consequently, as paragraph 3 of the operative order stated, “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.” 

Living Constitutionalism

There were, however, other arguments as well. In all of the judgments, for example, we find references to how the constitutional meaning is not fixed or static at its point of origin, but must evolve with time; or, in other words, the Constitution is a “living document.” This argument was fleshed out in the greatest detail in Justice Kaul’s opinion, in a full section titled “The Constitution of India – A Living Document” (paras 23 – 49). Justice Kaul argued that the Constitution must be continuously updated to keep up with the times, and that it has certain “core values” that “manifest themselves differently in different ages, situations and conditions.” (para 40) The values themselves were derived from the Preamble, with dignity given pride of place.

The arguments against the living constitutionalism approach to constitutional interpretation are well-known, and need not be rehearsed here. What is disappointing about Puttaswamy is that (with a couple of exceptions that I shall come to), the judges did not address them at all. In one paragraph, Justice Kaul pointed out that the framers themselves were aware of changing realities, and consequently, faithfulness towards their “original intent” would itself require a dynamic and innovative approach to constitutional interpretation (para 31). That is not enough, however: one cannot simply argue that the Constitution should be interpreted dynamically, and stop at that. There must be standards that guide this organic interpretation, standards that go beyond invocations judicial wisdom. The Preamble itself, with its broad principles, underdetermines this enquiry. From time to time, the judgments referred to the freedom struggle (paragraphs 111 and 115, Chandrachud J; paragraph 18, Chelameswar J), but once again, there was little discussion on what, precisely, was the connection between the freedom movement, and the interpretation of the Constitution.

The problem is quite simply this: we may agree that the Constitution lives and grows, but in which direction ought it to grow, at what pace? How do we know what is “organic growth”? To simply say that the Constitution adapts and evolves with the times, and that judges are charged with updating it, is not enough (what if, for example, the change in social attitudes is towards the contraction of rights instead of their expansion?). There needs to be an interpretive approach that is grounded in the constitutional text, its structure, its history, and the social and political circumstances in which it was drafted, and the broad problems that it was designed to respond to.

It is perhaps in Chelameswar J.’s separate opinion that we do see an effort towards developing such a theory. In Footnote 19 of his opinion, during his discussion of the Constitution’s dark matter, he observed that:

“This court has progressively adopted a living constitutionalist approach. Varyingly, it has interpreted the Constitutional text by reference to Constitutional values (liberal democratic ideals which form the bedrock on which our text sits); a mix of cultural, social, political and historical ethos which surround our Constitutional text; a structuralist technique typified by looking at the structural divisions of power within the Constitution and interpreting it as an integrated whole etc. This court need not, in the abstract, fit a particular interpretative technique within specific pigeonholes of a living constitutionalist interpretation. Depending on which particular source is most useful and what the matter at hand warrants, the court can resort to variants of a living constitutionalist interpretation. This lack of rigidity allows for an enduring constitution.”

In the same footnote, he then pointed out:

“The important criticisms against the living constitutionalist approach are that of uncertainty and that it can lead to arbitrary exercise of judicial power. The living constitutionalist approach in my view is preferable despite these criticisms, for two reasons. First, adaptability cannot be equated to lack of discipline in judicial reasoning. Second, it is still the text of the constitution which acquires the requisite interpretative hues and therefore, it is not as if there is violence being perpetrated upon the text if one resorts to the living constitutionalist approach.”

This is crucial, because it acknowledges that no credible interpretation of the Constitution can afford to ignore its text. Issues of structure, purpose, political ethos, and framework values must supplement the text, but they cannot supplant it (readers will recognise a broad similarity with Dworkin’s approach of “law as integrity” here). Judicial discretion is, of course, a central part of the interpretive exercise, but that discretion must be shaped by the constitutional text, structure, history, and overall purposes. It cannot simply reflect a judge’s view of how the Constitution is to be updated with the changing times, within the over-broad framework of the Preamble.

Natural Law

Both the plurality and Justice Nariman expressly overruled the notorious judgment of the Supreme Court in ADM Jabalpur vs Shivakant Shukla. Recall that in ADM Jabalpur, the Court had upheld the suspension of habeas corpus during a proclamation of Emergency, on the basis – among other things – that the source of rights was confined to the four corners of the Constitution itself – and given that the Constitution itself authorised their suspension in an Emergency, there was no basis on which detainees could move Court and claim any rights. In Puttaswamy, a majority overruled ADM Jabalpur on this specific point, and held that there were certain rights that could be called “natural rights”, inhering in people simply by virtue of their being human. The Constitution did not create such rights, but only recognised them.

In a full section dedicated to this argument (Section G), Chandrachud J, writing for the plurality, observed 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.” (para 40)

Variants of this statement were repeated at various points in his judgment, and in paragraph 119, ADM Jabalpur was overruled on this ground.

In his separate opinion, Justice Bobde noted that “privacy, with which we are here concerned, eminently qualifies as an inalienable natural right, intimately connected to two values whose protection is a matter of universal moral agreement: the innate dignity and autonomy of man.” (para 12) Justice Nariman observed that “we do not find any conflict between the right to life and the right to personal liberty. Both rights are natural and inalienable rights of every human being and are required in order to develop his/her personality to the fullest.” (para 45) He also overruled ADM Jabalpur on this point (paras 90 and 91). Justice Sapre held that “in my considered opinion, “right to privacy of any individual” is essentially a natural right, which inheres in every human being by birth. Such right remains with the human being till he/she breathes last. It is indeed inseparable and inalienable from human being. In other words, it is born with the human being and extinguish with human being.” (para 25) And Justice Kaul noted that “primal natural right which is only being recognized as a fundamental right falling in part III of the Constitution of India.” (para 76)

But if privacy is a “natural right” whose existence is only recognised by the Constitution, then two questions arise, neither of which (in my view) were answered satisfactorily by the bench. The first is: how do you determine the content of natural rights? In the history of natural law theorising, at one point, the doctrines of the church were believed to be the source of natural rights; at another point, human reason replaced canon law; Justice Bobde referred to “universal moral agreement”; and Justice Nariman invoked international law (in particular, the Universal Declaration of Human Rights). In my view, however, if the judgments were going to take the significant step of overruling ADM Jabalpur, and unequivocally stating that the source of (at least a few) fundamental rights is natural law, then it was incumbent upon them to develop at least the basics of an interpretive approach towards identifying the content of natural law. We face here the same problem as we did with the living constitutionalism approach: ultimately, without clear standards, there is too much power in the hands of the judges. Today, liberal judges may seek to expand rights by incorporating a “natural right” to privacy, that predates and pre-exists the Constitution; but what is to stop a judge, in the future, from invoking his own conception of natural rights (or, for that matter, natural duties) to contract liberty?

Interestingly, Justice Chelameswar seemed to recognise the problem, because throughout his judgment, there is not one reference to “natural rights”. This was surely not an unintentional omission. And indeed, in para 19, he noted that:

“To comprehend whether the right to privacy is a Fundamental Right falling within the sweep of any of the Articles of Part-III, it is necessary to understand what “fundamental right” and the “right of privacy” mean conceptually. Rights arise out of custom, contract or legislation, including a written Constitution.”

He then went on to observe that:

“All such Constitutions apart from containing provisions for administration of the State, contain provisions specifying or identifying certain rights of citizens and even some of the rights of non-citizens (both the classes of persons could be collectively referred to as SUBJECTS for the sake of convenience). Such rights came to be described as “basic”, “primordial”, “inalienable” or “fundamental” rights. Such rights are a protective wall against State’s power to destroy the liberty of the SUBJECTS.” (para 20)

This is a crucial paragraph, because while Chelameswar J used the same language as his brother judges had used (“primordial” and “inalienable”), he consciously used it not to signify natural rights that pre-existed the Constitution, but rights that, after Constitutions had been created “came to be described as” primordial and inalienable. And again:

Fundamental rights are the only constitutional firewall to prevent State’s interference with those core freedoms constituting liberty of a human being. (para 40)

Consequently, on the issue of whether natural rights, which pre-date the Constitution, are the sources of fundamental rights, the Court was not unanimous; rather, it split 8 – 1, with Chelameswar J the lone dissent. This, however, raises another question: what if, tomorrow, a fresh constitutional convention was called, the Constitution replaced, and a new Constitution brought in to substitute it? What if that Constitution (for example) expressly stated that privacy was not a fundamental right, or expressly espoused an hierarchical, anti-egalitarian ordering of society? Would the natural rights continue to exist and be enforced by the Court, notwithstanding the terms of the new Constitution? On the majority’s view, the answer would have to be yes.

Perhaps, though, if things came to that, we’d all have more pressing worries.

Conclusion 

Puttaswamy advanced two important theoretical propositions about constitutional law. The first was the doctrine of living constitutionalism, and the second was the endorsement of natural rights. I have my reservations about both propositions, but in this essay, my point has been that they needed a substantially stronger defence than what we find in Puttaswamy. That task, perhaps, is now left to future benches.

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The Supreme Court’s Right to Privacy Judgment – VIII: Privacy and the Right to Information

In the aftermath of the Puttaswamy judgment, it was reported that a committee of MPs had written to the election commission, asking that the disclosure of the assets of candidates’ spouses should not be required. They made their request on the basis of Puttaswamy. This has led to (legitimate) worries that privacy can now be invoked to stifle or hobble the right to information.

For the reasons I advanced in the previous essay (dealing with the right to privacy and free speech), I believe that this concern is mistaken. To briefly recap the previous essay: the judgment(s) in Puttaswamy are concerned only with privacy as a fundamental right, that is, as a shield for individuals against intrusive State action. They do not deal with when and how privacy may be used as a sword to limit the amplitude of other rights, such as the right to freedom of expression, and its cognate right, the right to information. In a number of judgments at both the High Court and the Supreme Court level, Courts were engaged in balancing privacy against freedom of speech and the right to information even before Puttaswamy. The question then is whether Puttaswamy added anything to that debate – i.e., whether it granted privacy an even higher pedestal than it occupied before. As I argued in the last essay, it did not: Puttaswamy only stated that privacy is a fundamental right, clarified its contours, and indicated when the State might be justified in limiting it. Nothing more.

The Right to Information Act 

In the case of the right to information, the issue is even more straightforward, because the Right to Information Act already protects privacy. Section 8(j) of that Act exempts from disclosure:

“… information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.”

Section 8(j) lays down the uncontroversial proposition that as far as “personal information” goes (and the Section specifically makes this clear through the succeeding phrase – “which has no relationship to any public activity or interest“) – the presumption is against disclosure, unless a larger public interest exists. Section 8(j) requires information officers and Courts to interpret the scope of terms such as “personal information”, “public activity or interest”, “unwarranted invasion”, and to also create a jurisprudence balancing the right of individuals to protect their personal information against the larger public interest.

Does the judgment in Puttaswamy affect any of this? The only aspect that it might possibly impact is the meaning of the phrase “personal information.” But even here, a close reading of the judgment dispels that impression. The phrase “personal information” occurred and recurred multiple times through the separate opinion, but it was only Justice Bobde’s opinion that defined it in any meaningful way, and that too in the context of State surveillance (“…the non-consensual revelation of personal information such as the state of one’s health, finances, place of residence, location, daily routines and so on efface one’s sense of personal and financial security.”) Justice Kaul, who had a full section dealing with the concept of “personal information” (in the context of data collection) refrained from defining it either.

In fact, more importantly, the separate opinions in Puttaswamy specifically acknowledged the Right to Information Act as an example of how the legislature had balanced the two constitutional values of access to information, and the right to privacy. For example, Justice Chandrachud observed that “legislative protection is in many cases, an acknowledgment and recognition of a constitutional right which needs to be effectuated and enforced through protective laws… for instance, the provisions of Section 8(1)(j) of the Right to Information Act, 2005 which contain an exemption from the disclosure of information refer to such information which would cause an unwarranted invasion of the privacy of the individual.” (para 153) Justice Nariman cited Section 8(j) for the proposition that, in the Right to Information Act, the legislature had recognised the right to privacy (para 89). Both Justice Chandrachud and Justice Nariman cited the prior judgment of the Supreme Court in Bihar Public Service Commission vs Saiyed Hussain Abbas Rizwi, where Justice Swatenter Kumar had specifically held that “thus, the public interest has to be construed while keeping in mind the balance factor between right to privacy and right to information with the purpose sought to be achieved and the purpose that would be served in the larger public interest, particularly when both these rights emerge from the constitutional values under the Constitution of India.”

The point, therefore, is this: the judgments in Puttaswamy acknowledge the fact that, in the Right to Information Act, the legislature has already struck a balance between two competing constitutional values: the right to privacy, and the right to information. This balance has been struck in the following manner: (1) define “personal information” in terms of that which has no relationship to any public interest or public activity; (2) presumptively protect personal information in cases where disclosure would amount to an “unwarranted interference in privacy”, and (3) override this presumption where the larger public interest requires it. To come back for a moment to the candidates’ spouses assets question: this disclosure does not fall within Section 8(j) because, given the social realities in India, spouses’ assets are often inseparable, and often deliberately so. In disclosing a spouse’s assets, there is, therefore, a definite relationship with a “public activity” (that is, candidature for public office), and even if not, a larger public interest exists.

Conclusion

The Right to Information Act contains a detailed and fine-grained legislative balancing act between the right to privacy and the right to information. Puttaswamy does not in any way override this balance, because the judgments in Puttaswamy expressly affirm and endorse it. Nor does Puttaswamy modify or change the balance, tilting it towards privacy: as we have seen, the issue of balancing privacy against public interest in the context of disclosure of information is not addressed in the judgment at all, and the definition of “personal information” is considered in only one opinion.

This is not to suggest, of course, that the existing jurisprudence under Section 8(j) is satisfactory. On the contrary, it has been seriously – and legitimately – criticised as providing far too much sanctuary to privacy, at the cost of the right to information. The purpose of this post, however, has been to show that that jurisprudence is entirely independent of the judgments in Puttaswamy. All that Puttaswamy does is recognise privacy as a fundamental right – or, in other words, all it does is affirm the fact, as already held before, that the Right to Information Act balances two constitutional values through Section 8(j). How that balance is to be achieved in concrete terms is the task of future benches.

 

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