Over the last six posts, we have tried to examine – chronologically – Indian Supreme Court cases dealing with the constitutional right to privacy, with a specific focus on surveillance. Our enquiry has spanned fifty years and many different aspects of law that touch an individual’s personal life – from criminal law practices (police surveillance, narco-analysis, self-incrimination) to phone-tapping, from marital relations to the status of one’s bank records. Despite the diversity of cases and the differing reasoning employed by judges to reach differing results over time, we have seen that a careful analysis reveals certain unifying strands of logic and argument that can provide a coherent philosophical and constitutional grounding to the right to privacy in Indian law, bases that the Court can – and should – draw upon in order to decide an eventual CMS/bulk surveillance challenge in a principled manner.

We can commence by emphasizing the distinction between two sets of privacy cases, a distinction that the Court has failed to appreciate so far. One set of cases involves privacy claims between private parties. Examples include a hospital revealing a patient’s medical records (Mr X v Hospital Z), or one spouse tapping the other’s phone (Rayala v Rayala). Now, these cases involve the infringement of a privacy right, but they do so as a matter of private law, not constitutional law. As a matter of principle, the remedies would lie in tort – the tort of invasion of privacy, for instance, or breach of confidence. The Court’s invocation of Article 21 in these cases must be deplored as a serious mistake. Article 21 is sets out a constitutional right, and unless otherwise expressly provided by the Constitutional text (see, e.g., Article 15(2)), constitutional rights are applicable vertically against the State, and not horizontally between individuals. Once again, a simply hypothetical will illustrate the absurdity of cases like Rayala: A murders B. Very obviously, the law governing this incident is the Indian Penal Code, which defines murder and prescribes the punishment for it. A has not violated B’s Article 21 right to life by murdering him. Now, there is something to be said for philosophical arguments that challenge the public/private State/individual dichotomy as a matter of first principle. That, however, is not our concern here. Whatever the philosophical validity of the distinction, there is little doubt that our Constitution subscribes to it quite explicitly, by having a Part III in the first place, and with provisions such as Articles 13 and 32.

There is one way of reconciling these cases. That is to read them not as invoking Article 21 as a ground for the decision, but invoking it to infuse the right to privacy with substantive content. That is, the private law right to privacy and the constitutional right to privacy, while rooted in different sources and enforceable against different entities, nonetheless (reasonably enough) codify the same abstract conception of what privacy is – and it is to that end that the Court, in private-party cases, cites 21.

This is crucial, because it helps to clarify the way in which these two rights are different, and to make sense of a jurisprudence that would be hopelessly incoherent otherwise. The difference lies in the standard for justifying an infringement. In the private-party cases, the Court – rightly – treats the matter as balancing various rights and interests involved of the different parties to the case. Mr X v Hospital Z, for instance – as understood by the Court – required a balancing of the patient’s right to privacy against his future in-laws right to know about prior, debilitating medical records in order that there be informed consent to the marriage. Small wonder then, that in these cases the Court – again, rightly – cites Article 8 of the ECHR, and analyses them in the language of proportionality.

In cases involving the State, however, we have seen that the Court has (almost uniformly) insisted upon the far higher standard of compelling State interest. Again, there is a logic to this distinction. The importance of maintaining a private sphere against State intrusion, the extent to which the State now has the power to intrude (as we have all seen over the last six months), considerations that ultimately go to the heart of maintaining a free and democratic society – all justify (if not necessitate) a higher standard. Once we understand this, it is possible now to understand why the Supreme Court has adopted one test in some cases, and another test in other cases. The justification is a principled one (even if the Supreme Court might not have been aware of it).

Proceeding, then, to the Article 21 constitutional right to privacy. The Court has located this within Article 21’s guarantee of personal liberty. In the early cases – Kharak Singh and Gobind – the Court understood the philosophical foundations of privacy to lie in the idea of individual dignity; that is, the basic thought that in order to live a dignified life, one must be able to have a sphere of action that is free from external invasion (this, essentially, is what is meant by the phrase, often used by the Court, “the right to be left alone). The dignitarian justification of privacy is to be sharply contrasted with another justification, that held the field in American Constitutional law for a long while: the propertarian justification, that grounds privacy in the idea that government is to keep off private property. This is what is meant by the Supreme Court’s slogan, “the right to privacy belongs to persons, not places.”

Ultimately, possibly, the basic philosophy is similar – advocates for property rights argue that without a certain measure of private property, an individual cannot live an independent and dignified life. Practically, however, the shift encodes an analytical difference. A propertarian foundation – concretely – would involve a set of spaces that are placed out of bound (e.g., the Fourth Amendment’s list of “homes, papers, effects” etc.) The dignitarian foundation would extend its scope to acts and places with regard to which persons have a reasonable expectation of privacy. Naturally, this will – and has – led to different results in practice, with the dignitarian foundation leading to more expansive privacy protection.

The persons-not-places justification also led the Supreme Court to reject the third-party doctrine, according to which privacy interest is lost when personal effects are voluntarily handed over to a third party. In Canara Bank the Court emphasized that the character of those items – their personal nature – does not change simply because their location has changed. The privacy interest is retained, whether they are bank records, or telephone details.

These are the contours of the privacy right. Naturally, it is not absolute, and the Court has taken pains to specify that on numerous occasions. What, then, justifies an infringement? The Court has consistently called for a “compelling State interest“, one that rises beyond the simple “public interest” encoded in the 19 restrictions. Side-by-side with compelling State interest, the Court has also required – although it has never expressly spelt it out – the restrictive law to be narrowly tailored. In other words, the government must show that its infringing law not only achieves the compelling State interest, but does so in a way that restricts privacy in the narrowest possible manner. If there are other conceivable ways of achieving the same goal that do not infringe upon privacy to the extent the impugned law does, the law will be struck down. We see this in the police surveillance cases, where in Gobind, for instance, the Court read into Regulation 855 an additional requirement of gravity, to ensure that it was narrowly tailored; and we see it even more clearly in the phone-tapping cases, where the Court’s rules require not only specification of persons, numbers and addresses, but also require the State to resort to surveillance only if other methods are not reasonably open, and in so doing, to infringe privacy minimally. Targeting, indeed, is critical: all the surveillance cases that we have explored have not only involved specific, targeted surveillance (indeed, S. 5(2) of the Telegraph Act only envisages targeted surveillance), but the very fact that the surveillance is targeted and aimed at individuals against whom there are more than reasonable grounds of suspicion, has been a major – almost dispositive – ground on which the Court has found the surveillance to be constitutional. Targeting, therefore, seems to be an integral aspect of narrow tailoring.

I do not mean to suggest that the above is a complete philosophical account of privacy. It ignores, for instance, the very legitimate concern that creating a private sphere only serves to justify relations of non-State domination and oppression within that sphere – both symbolically, and actually (see, for instance, the infamous marital rape exception in Indian criminal law). It presumes – instead of arguing for – the basic philosophical idea of the ultimate unit of society being indivisibly, atomized individual selves living in hermetically sealed “zones” of privacy, an assumption that has come under repeated attack in more than fifty years of social theory. I hope to explore these arguments another day, but the purpose of this series has been primarily doctrinal, not philosophical: to look at surveillance in the framework of established constitutional doctrine without questioning – at least for now – the normative foundations of the doctrine itself.

Our conclusions, then, summarized very briefly:

– the right to privacy is an aspect of Article 21’s guarantee of personal liberty, and is grounded in the idea that a free and dignified life requires a private sphere

– one does not necessarily lose one’s privacy interest in that which one hands over to a third party

– an infringement of privacy must be justified by a compelling state interest, and the infringing law must be narrowly tailored to serve that interest

As far as the CMS, Netra and other dragnet surveillance mechanisms go, it is clear, then, that they implicate a privacy interest; and to justify them, the government must show that there is no other way in which it could achieve its goals (of combating terrorism etc) without bulk surveillance on an industrial scale.

If recent judgments of our Supreme Court do not exactly instill confidence in its role as the guarantor of our civil liberties, its long-term record in national security cases is even worse. A.K. Gopalan, Habeas Corpus and the 2004 PUCL come to mind as examples. It is therefore unclear how the Court will rule on a CMS/surveillance challenge. One thing is clear, though: the privacy law jurisprudence that it has developed over the last fifty years provide it with all the analytical tools to fulfill its constitutional mandate of protecting civil liberties. Consistent with the narrow tailoring test, the Supreme Court ought not to allow the government to baldly get away with asserting a national security interest, but require it to demonstrate not only how national security is served by dragnet surveillance,  but also how dragnet surveillance is the only reasonable way of achieving national security goals. The possibility of abuse is too great, and the lessons that history teaches us – that totalitarianism always begins with pervasive governmental spying over individuals – is to be ignored at all our peril.

In that respect, last week has been significant, as it witnessed the beginnings of the pushback against the American surveillance state. In his opinion on the Columbia Circuit Bench, which we referred to on this blog, not only did Judge Leon hold the NSA spying program likely to be unconstitutional, but notably, he refused to accept NSA claims of national security on their face. He went into the record, and found that out of the 54 instances that the NSA had cited of allegedly foiled terrorist plots, it had miserably failed to prove even one where the outcome would have been different without bulk surveillance. This is a classic example of how narrow tailoring works. And later in the week, the Review Panel set up by President Obama emphatically rejected the contention that bulk surveillance is a necessary compromise to make in the liberty/security balance. Given this, and given the worldwide pushback underway against such surveillance measures, from Brazil to Germany, it would be a constitutional tragedy if the Supreme Court ignored its own well-crafted jurisprudence and let the government go ahead with bulk surveillance on the basis of asserted and unproven national security claims. Tragic, but perhaps not entirely unexpected.