The Right to Privacy and the Supreme Court’s Referral: Two Constitutional Questions

Today, in a detailed order in the ongoing Aadhar litigation, a three-judge bench of the Supreme Court referred the question of whether there exists a fundamental right to privacy under the Constitution, to a five-judge bench. In its order, the Court explains that the Attorney-General referred to the judgments in M.P. Sharma vs Satish Chandra (eight judges) and Kharak Singh vs State of UP (six judges), both of which seem to hold that there is no right to privacy under the Constitution. The Court then observes:

“The institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.”

One can have no quarrel with this reasoning. Nonetheless, I think that two important constitutional questions arise, which need to be addressed.

(1) (Edit: It was correctly pointed out to me by Suhrith Parthasarthy that the Supreme Court order does not specify that it is making a referral under Article 145(3). Taking that point on board, I rest the following discussion on the first sentence of paragraph 12 of the Order, where the Court says, in language that mirrors that of Article 145(3): “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution.” At the end of the same paragraph, however, it also suggests that the reason for referral is to clear up an inconsistency between different benches. My thanks to Suhrith for bringing this to my attention)

The referral has been made under Article 145(3) of the Constitution, which states that:

“The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

What, precisely, constitutes “a substantial question of law as to the interpretation of this Constitution”? Before today’s order, there have been two constitutional challenges where the Court has refused to make a referral. The first is the constitutional challenge to Section 377 of the IPC, which was decided by a two-judge bench in Koushal vs Naz. The second is the constitutional challenge to Section 499 of the IPC (Subramanian Swamy vs Union of India), which is being heard by a two-judge bench at present. Both these cases raised questions of constitutional interpretation: Koushal vs Naz asked whether “sexual orientation” was a protected ground under Article 15(1) (whether arising out of “sex”, or as an analogous ground read into the provision), and whether sexual orientation was protected under Article 21’s right to privacy. The criminal defamation challenge asks whether a 155-year old legal provision under the Penal Code violates the freedom of speech and expression; it also asks the Court to harmonise the constitutional free speech standards that apply to civil defamation and criminal defamation.

What differentiates today’s order from the previous two? The only relevant difference seems to be the existence of conflicting judgments of varying bench strengths. But surely whether or not something involves a substantial question of law as to the interpretation of the Constitution cannot depend upon whether previous judgments have been consistent on the point! To a large extent, the fragmentation of constitutional jurisprudence in recent years has been due to two or three-judge benches hearing important constitutional matters (R. Rajagopal vs Union of India is a case in point). In the referral, the Supreme Court has a chance to clarify the criteria for future references; at the least, a challenge to the constitutional validity of a legal provision should certainly merit a hearing by a Constitution Bench!

(For an excellent discussion, see Suchindran Narayan’s essay on Law and Other Things)

(2) In the logical course of things, a three-judge bench will refer the matter to a five-judge bench, which will then decide whether or not to refer the matter to an even greater bench. The question in this case is: what should be the strength of the bench that decides the question of whether or not there exists a fundamental right to privacy? One argument is that since the decision in M.P. Sharma vs Satish Chandra has expressly been relied upon by the Attorney-General, the bench must consist of at least nine judges, since they can, if required, overrule that case.

With respect, I think this is incorrect. In my opinion, five judges (a Constitution Bench) are enough to decide this issue, for the reason that neither M.P. Sharma (eight judges) nor Kharak Singh (six judges) are binding on the specific issue of whether there exists a constitutional right to privacy. M.P. Sharma was a case involving Article 20(3) of the Constitution (the right against self-incrimination), and the Court’s observations on privacy are entirely incidental to the issue. Kharak Singh is a more complex case, that involved a constitutional challenge to certain forms of surveillance carried out by the police upon a “history-sheeter’s” residence, which included tracking his movements. With respect to the right to privacy, the Court noted:

“Does then the fact that an enquiry is made as regards the movements of the suspect and the facts ascertained by such enquiry are verified and the true facts sifted constitute an infringement of the freedom to move? Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

What is crucial to note here is that the observations on privacy arise out of a specific and concrete question: whether the tracking of someone’s movements violates his fundamental rights. The Court’s reasoning, which is contained in a previous part of the judgment, is as follows:

“The question that has next to be considered is whether the intrusion into the residence of a citizen and the knocking at his door with the disturbance to his sleep and ordinary comfort which such action must necessarily involve, constitute a violation of the freedom guaranteed by Art. 19 (1) (d) or “a deprivation” of the “personal liberty” guaranteed by Art. 21. Taking first Art. 19 (1) (d) the “freedom” here guaranteed is a right “to move freely” throughout the territory of India. Omitting as immaterial for the present purpose the last words defining the geographical area of the guaranteed movement, we agree that the right to “‘move” denotes nothing more than a right of locomotion, and that in the context the adverb “‘freely” would only connote that the freedom to move is without restriction and is absolute, i. e., to move wherever one likes, whenever one likes and however one likes subject to any valid law enacted or made under cl. 5. It is manifest that by the knock at the door, or by the man being roused from his sleep, his locomotion is not impeded or prejudiced in any manner. Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the “‘free” movement guaranteed by sub-cl. (d). We are not persuaded that Counsel is right in the suggestion that this would have any effect even on the mind of the suspect, and even if in any particular case it had the effect of diverting or impeding his movement, we are clear that the freedom guaranteed by Art. 19 (1) (d)has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.”

The Court then noted that under the scheme of the Constitution, Article 21 contained the “residue” of the rights that were left out from Article 19. Consequently, the core of the Court’s reasoning was that the “right to movement” was solely contained within Article 19(1)(d); having once found that Article 19(1)(d) was not attracted, the question of Article 21, and  did not even arise.

However, in Gobind vs State of MP, the case which birthed the fundamental right to privacy, it was indeed held that privacy was an aspect of Article 21, on which issue Kharak Singh was not binding. There are independent reasons why Gobind was correctly decided: the “residue theory” in Kharak Singh was no longer good law; in Maneka Gandhi vs Union of India, the previous eleven-judge bench decision in R.C. Cooper had been relied upon specifically to abandon the interpretation of the Constitution that placed fundamental rights in separate, hermetically sealed containers. After Maneka Gandhi, therefore, the basis of Kharak Singh had, in any case, been obliterated.

Consequently, neither M.P. Sharma nor Kharak Singh are binding upon the question of whether there exists a fundamental right to privacy under the Constitution. The question turns upon interpreting the relationship between R.C. Cooper, Maneka Gandhi and Kharak Singh, and independently assessing whether, in light of the “inter-relationship of rights” theory that existed at Gobind’s time, whether it was correct in extracting a right to privacy out of a structural reading of the Constitution.

For various reasons, I believe that Gobind was correctly decided. For now, though, a Constitution Bench should decide the case without the constraining shackles of either M.P. Sharma or Kharak Singh.

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