The Supreme Court’s Right to Privacy Judgment – V: Privacy and Decisional Autonomy

The Supreme Court changes its mind frequently, often holding that its own previous judgments are no longer good law. It is rare, however, for the Court to reverse itself in a case where the correctness of a prior judgment was not at issue, and was not argued by counsel. For that reason, the Puttaswamy plurality’s castigation of the Supreme Court’s 2013 judgment in Koushal vs Naz Foundation – which recriminalised homosexuality – is particularly important. It is important because, in singling out Koushal as a judgment that got things badly wrong, the plurality (supported by observations from Justices Chelameswar and Kaul) gives us an insight into not only into the abstract formulation of decisional autonomy as an aspect of privacy, but also into how it might be applied in concrete cases.

The Formulation of Decisional Autonomy

Decisional autonomy is the one aspect of privacy that overlapped precisely across the formulation adopted by Justices Chandrachud and Nariman, and the slightly different formulation endorsed by Justice Chelameswar. Justice Chelameswar’s three-pronged definition of privacy consisted of “repose, sanctuary, and intimate decision” (para 36). Elaborating upon the third aspect through examples, he cited “… the choice of people regarding the kind of literature, music or art which an individual would prefer to enjoy” (para 37), “an individual’s rights to refuse life prolonging medical treatment or terminate his life” (para 38), “a woman’s freedom of choice whether to bear a child or abort her pregnancy” (para 38), “the freedom to choose either to work or not and the freedom to choose the nature of the work” (para 38), and the freedom not “to be told by the State as to what [one] should eat or how [one] should dress or whom [one] should be associated with either in their personal, social or political life.” (para 39) Many of these, readers will recall, are live issues before the Court (and Justice Chelameswar acknowledged as much).

Justice Bobde emphasised the centrality of “choice” in associative freedoms (para 31), as did Justice Nariman, who observed that the “privacy of choice… protects an individual’s autonomy over fundamental personal choices.” (para 81) This he linked further to both democracy (“… the core value of the nation being democratic… would be hollow unless persons in a democracy are able to develop fully in order to make informed choices for themselves which affect their daily lives and their choice of how they are to be governed…” (para 82)) and dignity and autonomy (“… the dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices (para 85))

“Choice” was a central part of Justice Kaul’s opinion as well – so much so that it bookended his judgment, featuring both at the beginning (“[Privacy] is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so…” (para 10)) and at the end (“… it is an individual’s choice as to who enters his house, how he lives and in what relationship…” (para 78)). And Justice Chandrachud’s plurality formulated the right in the following terms: “Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress” (para 142). It then took specific example, such as compulsory sterilisation programs for women (para 157), sexual orientation (para 168), and “various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.” (para 169)

Beef and Alcohol

Between them, the separate opinions in Puttaswamy set out a rather clear exposition of decisional autonomy as a facet of the right to privacy. Furthermore, the recognition of decisional autonomy is bound to have a serious impact upon a number of cases pending before the Courts, as well as settled cases that may now be reopened. These include issues of abortion, euthanasia, food choices, sexual orientation, and so on. In this essay, I will focus on three issues that present different perspectives on decisional autonomy, and the leave the rest for readers to consider for themselves.

First, the beef ban appeals. Recall that in May 2016, the High Court of Bombay had struck down a part of Maharashtra’s Animal Preservation Act, which criminalised possession of beef brought from outside Maharashtra, on privacy grounds:

“As far as the choice of eating food of the citizens is concerned, the citizens are required to be let alone especially when the food of their choice is not injurious to health… the State cannot control what a citizen does in his house which is his own castle, provided he is not doing something which is contrary to law. The State cannot make an intrusion into his home and prevent a citizen from possessing and eating food of his choice… this intrusion on the personal life of an individual is prohibited by the right to privacy which is part of personal liberty guaranteed by Article 21… thus, if the State tells the citizens not to eat a particular type of food or prevents the citizens from possessing and consuming a particular type of food, it will certainly be an infringement of a right to privacy as it violates the right to be let alone… in the present case, Section 5D prevents a citizen from possessing and from consuming flesh of a cow, bull or bullock even if it is flesh of a cow,bull or bullock slaughtered in territories where such slaughter is legal. Hence, Section 5D is certainly an infringement of right to privacy which is implicit in the personal liberty guaranteed by Article 21.” (paragraph 176)

The State of Maharashtra appealed against this finding, and the case is due to be heard next week. In view of the clear observations of the nine-judge bench, it seems highly likely that at least this part of the judgment will be upheld. Note, however, that the Bombay High Court also upheld other sections of the Act, which criminalised sale and transport of cattle for slaughter, as well as possession of cattle flesh as a result of illegal slaughter (some of the issues were discussed on this blog, here). The petitioners before the High Court have appealed against those parts of the decision. The Bombay High Court’s judgment was based on a series of Supreme Court judgments (discussed in the blog post) which had upheld cattle slaughter bans based upon the economic necessity of the cow and cattle products such as cow dung. While that might continue to be used as a ground to justify bans on cattle slaughter, what will be now be interesting to watch is whether the provision criminalising possession of cattle flesh (that is, flesh of cattle slaughtered illegally) can survive the strong statement of the right to privacy endorsed in Puttaswamy – and whether, further, the Court’s proportionality analysis when considering cattle slaughter bans will itself undergo an alteration.

Similar considerations also apply to prohibition laws, including Bihar’s recent legislation, which was struck down by the Patna High Court (analysed on this blog here), and then stayed immediately by the Supreme Court, where one of the concurring judges had noted:

“Similarly, with expanding interpretation of the right to privacy, as contained in Article 21 of the Constitution, a citizen has a right to choose how he lives, so long as he is not a nuisance to the society. State cannot dictate what he will eat and what he will drink. We have to view this concept in changing times, where international barriers are vanishing. Any restriction by a State, on the right to choose what to eat and what to drink, apart from being invasion of right of privacy under Article 21, would prejudicially affect free movement and free residence, in any part of territory of India, for the citizens. Keeping in view these factors, a citizen cannot be prohibited from his choice, within the confines of his house, subject to orderly behaviour, of enjoying his drink, which he can procure from any other part of the country, where prohibition is not in force.” (paragraph 88.04)

While staying this judgment, Justice Dipak Misra (now Chief Justice of India) had reportedly remarked in court that “alcohol and fundamental rights do not go together.” Puttaswamy, however, makes it rather clear that there is no such constitutional doctrine in existence – in fact, quite the contrary. It now remains to be seen whether the fate of alcohol bans will be different.

Sex Work

The Immoral Traffic (Prevention) Act of 1956 regulates sex work in India. Section 20 of this Act states that:

“A magistrate on receiving information that any [person] residing in or frequenting any place within the local limits of his jurisdiction, is a prostitute, may record the substance of the information received and issue a notice to such [person] requiring him to appear before the magistrate and show cause why he should not be required to remove himself from the place and be prohibited from re-entering it.”

When a previous variant of this was challenged before the Supreme Court in 1964, it was upheld on the following basis:

“The differences between a woman who is a prostitute and one who is not certainly justify their being placed in different classes. So too, there are obvious differences between a prostitute who is a public nuisance and one who is not. A prostitute who carries on her trade on the sly or in the unfrequented part of the town or in a town with a sparse population may not be so dangerous to public health or morals as a prostitute who lives in a busy locality or in an overcrowded town or in a place within the easy reach of public institutions like religious an educational institutions. Though both sell their bodies, the latter is far more: dangerous to the public, particularly to the younger generation during the emotional stage of their life. Their freedom of uncontrolled movement in a crowded locality or in the vicinity of public institutions not only helps to demoralise the public morals, but, what is worse, to spread diseases not only affecting the present generation, but also the future ones. Such trade in public may also lead to scandals and unseemly broils. There are, therefore, pronounced and real differences between a woman who is a prostitute and one who is not, and between a prostitute, who does not demand in public interests any restrictions on her movements and a prostitute, whose actions in public places call for the imposition of restrictions on her movements and even deportation. The object of the Act, as has already been noticed is not only to suppress immoral traffic in women and girls, but also to improve public morals by removing prostitutes from busy public places in the vicinity of religious and educational institutions.”

If privacy includes decisional autonomy, however (and as Justice Chelameswar correctly pointed out, decisional autonomy includes choice of work), then surely there exists no a priori moral difference between someone who is a “prostitute” and someone who is engaged in any other occupation. There is, therefore, at least a prima facie constitutional violation when a Section singles out sex workers alone, and makes them liable for “removal” from a place at the instance of a Magistrate.

Admittedly though, in upholding the Section, the Supreme Court focused primarily on the relationship between sex work and (the deterioration) public morals. And it is in this context that we must now turn to Puttaswamy’s rejection of Koushal vs Naz.

Sexual Orientation

Justice Chandrachud’s plurality opinion referred to Koushal vs Naz as “a discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” (para 124) To substantiate this, he cited Koushal’s infamous line about “the so-called rights of the minuscule minority” (para 125), and then went on to note that Koushal was wrong because “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.” (Para 125) The plurality concluded this point by noting that:

“…  we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect. Since the challenge to Section 377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.” (para 128)

The crucial point, however, is that in Koushal, the minuscule minority comment did not feature as part of the judgment’s discussion of privacy. Koushal’s “analysis” of privacy began at paragraph 45 of that judgment. It specifically acknowledged that privacy is a fundamental right under Article 21 (para 46) – and that includes the right to bodily integrity and sexual choices (para 47) –  quoted all the precedents on the point (paras 48 to 50), and then – stopped. There is no specific finding in Koushal on how Section 377 of the IPC withstands a privacy analysis. Given that the Court upheld the Section, however, it clearly survived privacy scrutiny, but not on the ground that the LGBT community had no right to privacy (because that was acknowledged by the Court in para 47 by invoking sexual choices). The only other logical possibility is that Koushal held that Section 377 justifiably limited the right to privacy.

Now, before the Delhi High Court, where the matter was heard originally, the State had advanced two justifications for Section 377 – public health and public morals. While the State did not appeal the High Court’s decision to read down Section 377, an appeal was carried by numerous religious groups, who adopted the same arguments, while focusing on morality. Public health is a purely fact-based argument, and the absence of any discussion on that point in Koushal clearly indicates that that could not have been the reason for upholding Section 377. That leaves us only with public morality.

It is here that Justice Chandrachud’s observation attains crucial significance, because he noted that:

“… the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.”

The use of both words – “legislative” and “popular” is surely no accident. If Justice Chandrachud was only referring to the proposition that the purpose of fundamental rights was to act as a check upon legislative majoritarianism, then the phrase “legislative” was sufficient. The addition of the word “popular” makes it clear that he had in mind something beyond majoritarian laws: he was, in short, referring to that amorphous concept of “public morality.” And this becomes especially important when we recall that the Delhi High Court had specifically distinguished between “popular morality” (it had, like Justice Chandrachud, used the exact word “popular”) and “constitutional morality”, and had held that only the latter could be a ground for restricting fundamental rights.

The plurality’s rejection of Koushal, therefore (with which Justice Kaul agreed), must be a rejection of the argument that public morality can be invoked to trump the fundamental right to decisional autonomy – an argument, readers will note, that the Supreme Court has often adopted, especially in free speech cases involving book bans and hurt sentiments. And in fact, that is the only sensible way of reading the separate opinions in Puttaswamy: as we have seen, all the judgments referred repeatedly to the individual’s right to fashion her own life through control over her fundamental and intimate choices. This right would, quite literally, make no sense if it could be limited on the basis of public morals, because the whole point – as Justice Chandrachud noted expressly in his plurality, was that “privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity.” (para 168)

This brings us back to Section 20 of the Immoral Traffic (Prevention) Act – and indeed, a number of other laws that restrict privacy (as well as other fundamental rights) on the amorphous, shifting terrain of “public morals”. On Puttaswamy’s fashioning of the right to privacy (and decisional autonomy) as the right not to conform when it comes to intimate decision-making (and that, as we have seen, includes the right to choose your work, food choices, sexuality, and so on), whatever other ground the State might invoke to justify restrictions, it cannot invoke public morality. A lasting contribution of Puttaswamy, therefore, is to make it clear that in our constitutional scheme, individual rights cannot be constrained on the basis of pure, brute majoritarian justifications. And this – once again – is consistent with how each of the separate opinions place the individual at the heart of the constitutional order.

That it took so long for the Supreme Court to affirm something so basic is another matter. Yet, better late than never.

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Postscript: As I pointed out in my initial post, Puttaswamy’s transformative potential can become a reality only if it is applied in concrete cases by the courts. In this context, the ongoing Akhila/Hadiya case before the Supreme Court is significant. This is a case where the High Court of Kerala annulled a marriage between an adult woman, who had converted to Islam, and an adult Muslim man, and directed the woman to be taken into the custody of her parents (where she has remained for the past three months, under police guard). Undoubtedly, the High Court had the power to annul a marriage if it found that it had not been conducted in accordance with law (although it is disputable whether it could have done so in a habeas corpus petition, which was what happened). However, it certainly had no power to order that she be confined to her father’s house. If decisional autonomy means anything at all, surely it means the right of an adult woman to make independent choices about residence and marriage. While the case has been heard on two occasions by the Supreme Court, both hearings were before the judgment in Puttaswamy; now that decisional autonomy has been unambiguously held to be part of the fundamental right to privacy, on the next hearing, the Court, I would submit, ought to set aside that part of the Kerala High Court order, and ensure that the promise of Puttaswamy is translated into reality when privacy is no longer an abstract problem, but rather, impacts the lives and fates of real human beings.

The Supreme Court’s Right to Privacy Judgment – IV: Privacy, Informational Self-Determination, and the Idea of Consent

In our discussion of the Supreme Court’s judgment in Puttaswamy, so far, one common thread is emerging: the individual is at the heart of the Court’s understanding of the right to privacy. We saw this in the Court’s refusal to frame privacy in spatial or relational terms, in the plurality’s acknowledgment of the feminist critique of privacy, and in the judgment’s resurrection of Justice Subba Rao’s dissenting opinion in Kharak Singh in its discussion of privacy and the human body. In this essay, I shall focus on the second aspect of privacy outlined in Puttaswamy – privacy as informational self-determination – and examine how the judgment’s overarching concern with the individual translates into how the separate opinions frame and understand the right to informational self-determination.

In Puttaswamy, informational self-determination was discussed in the judgments of Nariman and Kaul JJ, and in the plurality opinion of Chandrachud J. Nariman J. held that “informational privacy… does not deal with a person’s body but deals with a person’s mind, and therefore recognizes that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.” (para 81) Kaul J. observed that “an aspect of privacy [is] the right to control dissemination of personal information. The boundaries that people establish from others in society are not only physical but also informational. There are different kinds of boundaries in respect to different relations. It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it.” (para 53) And in the plurality, Justice Chandrachud noted that “informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” (para 142) Later in his judgment, he discussed the issues raised by aggregation of data from separate silos, that, when combined, provided observers with a 360-degree view of an individual’s life (paras 173 and 174), and also observed that “apart from safeguarding privacy, data protection regimes seek to protect the autonomy of the individual. This is evident from the emphasis in the European data protection regime on the centrality of consent. Related to the issue of consent is the requirement of transparency which requires a disclosure by the data recipient of information pertaining to data transfer and use.” (para 177)

The issue of informational self-determination – and the allied issue of data protection – will undoubtedly have a crucial impact on the adjudication of the Aadhaar challenge, from which the Puttaswamy reference arose. Towards the end of his judgment, Justice Chandrachud acknowledged that the issue of data protection was presently before the government-appointed Shrikrishna Committee, which had been tasked with drafting an appropriate bill. In the days to come, there will undoubtedly be rigorous debate on the Committee’s work, and the issue of informational self-determination will be at the fore when the Aadhaar challenge is heard in November. Consequently, in this essay, my intention is not to go too deep into the mechanics of these issues. What constitutes “personal data”, what kind of information does an individual have the right to control and to what extent,and  does an individual have a stronger right to control some aspects of her personal data and a weaker right over others – all of this remains to be litigated in concrete factual situations. It was not for this nine-judge bench, sitting in referral, to address these questions in the abstract – as indeed it has not.

What I do want to focus on here, however, is the consensus between all the judgments on one basic principle: that what is central to informational self-determination is the principle of informed consent. Justice Nariman framed it as a question of “unauthorised” use of personal information. Justice Kaul insisted that a person “know” what his data is being used for, and be able to “correct and amend” that use. Justice Chandrachud explicitly referred to European principles of data protection, formulating it as a question of protecting individual “autonomy” (as we have seen, autonomy is one of the foundational concepts underlying the plurality judgment). Importantly, “transparency” – that is, disclosure and transparency about the use of personal data, which is a question of accountability – appeared in the Justice Chandrachud’s plurality opinion as a “related issue”, after an express observation about the centrality of consent. In other words, principles of transparency, disclosure and accountability cannot substitute the basic principle of informed consent, although they can supplement it. The point was put in simple, straightforward and explicit terms by Justice Kaul, who stated the principle in so many words:

“The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed.” (para 70)

Readers will note that while in the first part of the sentence, Justice Kaul focuses on consent, in the second part – related to specific use – he uses the word “disclosed”. This might create some momentary doubt about whether, in the second part of the sentence, there is some slight dilution of the principle of informed consent.

This, however, would be a mistaken reading of Kaul J.’s opinion – and it is here that the operative order of the Court once again assumes crucial relevance. Recall that in the operative order, all nine judges held that “decisions subsequent to Kharak Singh which have enunciated the position in (iii) [that is, that privacy is a fundamental right] above lay down the correct position in law.” One of these decisions was a 2005 judgment of a three-judge bench of the Supreme Court called District Registrar vs Canara Bank.

In Canara Bank, Section 73 of the Stamp Act, that allowed – inter alia – the Collector to access private records that would normally be subject to the confidentiality relationship between banker and customer, was challenged. Responding to the contention that once one had voluntarily given over one’s bank records to a third party, there was no privacy interest remaining in them (as held in the much-critcised American case of US v Miller), the Supreme Court held that:

 “… the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-`-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

In doing so, the Court specifically rejected something called “the third party doctrine”, which was a staple feature of American privacy law. The doctrine originated with the judgment in  United States vs Miller, where the question was whether a person had a privacy interest in personal records held by a bank. The Court held he did not, since:

“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”

This is known as the third-party doctrine. Speaking for four members of the Court in dissent, Justice Brennan rejected it, reasoning that:

“[A] depositor reveals many aspects of his personal affairs, opinions, habits, associations. Indeed, the totality of bank records provides a virtual current biography. . . . Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds.”

Three years later, in Smith vs Maryland, the question arose whether a pen register (that is, an electronic device that records all numbers called from a particular telephone line), installed on the telephone’s company’s property, infringed upon a legitimate expectation of privacy. The US Supreme Court held that it did not, because:

“Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”

Smith vs Maryland is essentially the third-party doctrine applied to telephone records. Records in question are knowingly and voluntarily passed on to a third party (the telephone company), the customers being aware that the third party is storing and recording them. Consequently, there is no reasonable expectation of privacy – or so held the US Supreme Court.

In rejecting US vs Miller, did the Indian Supreme Court, in Canara Bank, reject the third-party doctrine as well? In my view it did so, because the Court observed, at para 54, that:

“Once we have accepted in Govind and in latter cases that the right to privacy deals with ‘persons and not places’, the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-a’-vis the person, even if they are no longer at the customer’s house and have been voluntarily sent to a Bank.”

In other words, even if we voluntarily had over private information to a third party, we continue to retain our right to privacy in that information. And in Puttaswamy, Justice Nariman’s separate opinion examined Canara Bank in great detail (paragraph 47 and 59), and noted as well that Miller had itself been overturned in the United States through congressional legislation.

Now, when we combine the principle of informed consent, which was affirmed by multiple judgments in Puttaswamy, with the principle that individuals retain privacy rights even over information voluntarily handed over to third parties (the holding in Canara Bank, affirmed by the operative order in Puttaswamy), we get the following proposition: for the purposes of the fundamental right to privacy, consent is not a one-time waiver of your right to control your personal information, but must extend to each and every distinct and specific use of that information, even after you have consented to the State collecting it from you. In other words, voluntarily handing over personal information to the State does not give it a carte blanche to use for whatever purposes it deems fit – but rather, the State is constitutionally bound to take the individual’s informed, meaningful consent at every stage that it wants to use that individual’s information. This, I would suggest, is the correct reading of Justice Kaul’s opinion: the first part of the sentence – that “the State must ensure that information is not used without the consent of users” – refers to separate, discrete and individual instances of use, while the second part of the sentence tags on disclosure and accountability as a supplementary principle.

In the beginning of this essay, I had observed that the centrality of the individual is the golden thread that runs through the six separate opinions in Puttaswamy. In the last essay, I argued that in the first of the three aspects of privacy that the judgment outlined, it accorded paramount importance to the individual, human body, and its relationship with the State. In this essay, I have argued that in developing informational self-determination as the second aspect of privacy, the Court placed the principle of informed, meaningful consent at the heart of its conception of what it meant to have the right to control your personal information. And in the next essay, we shall see how the individual, once again, features at the core of the Court’s vision of decisional autonomy.

The Supreme Court’s Right to Privacy Judgment -III: Privacy, Surveillance, and the Body

(Author’s Note: This is an adapted version of a piece first published today morning in the Business Standard.)

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In the previous two essays, I discussed the conceptual foundations of the right to privacy judgment, as well as the theoretical underpinnings of privacy endorsed by the Court. in the next three essays, I shall consider the three aspects that the judgments identify at the heart of the concept of privacy: the body, personal information, and decisional autonomy.

First, the body. As Justices Sachs and O’Regan of the South African Constitutional Court observed, the “inviolability and worth of the human body” is central to any formulation of privacy. The concern for bodily integrity comes through most clearly in Justice Chelameswar’s opinion, when he speaks about “freedom from unwarranted stimuli” (para 36), corporal punishment, and forced feeding (para 38). The phrase “unwarranted stimuli” recalls the 2010 judgment of the Supreme Court in Selvi vs State of Karnataka where, in striking down police interrogation techniques such as narco-analysis and brain-mapping, the Court provided its most detailed and considered analysis of bodily (and mental) privacy under Articles 20(3) and 21 of the Constitution. I have examined the judgment in Selvi elsewhere, and will not rehearse the arguments here, apart from noting that, in the operative order of Court, Selvi stands affirmed as correctly decided.

Privacy’s concern with the body, however, goes beyond direct, physical interference by the State. Consider, for example, what the journalist Glenn Greenwald writes in No Place to Hide, the book that chronicles Edward Snowden’s unmasking of the American mass surveillance regime:

“Only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the state – where the private realm is effectively eliminated – is one in which those attributes are lost, at both the societal and the individual level.”

Fifty-five years ago, Justice Subba Rao understood this when he penned his powerful dissent in Kharak Singh vs State of UP. Recall that Kharak Singh was about police surveillance of a “history-sheeter”, which included tracking his movements. Striking down the regulations in their entirety, Subba Rao J observed that “if a man is shadowed, his movements are obviously constricted… [the] movement of an automation. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail… the petitioner under the shadow of surveillance is certainly deprived of this freedom [the freedom of movement]. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce perforce engender(s) inhibitions in him and he cannot act freely as he would like to do.”

And:

“Assuming that Art. 19(1)(d) of the Constitution must be confined only to physical movements, its combination with the freedom of speech and expression leads to the conclusion we have arrived at. The act of surveillance is certainly a restriction on the said freedom. It cannot be suggested that the said freedom is also bereft of its subjective or psychological content, but will sustain only the mechanics of speech and expression. An illustration will make our point clear. A visitor, whether a wife, son or friend, is allowed to be received by a prisoner in the presence of a guard. The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom? It is impossible for him to express his real and intimate thoughts to the visitor as fully as he would like.”

At the heart of Justice Subba Rao’s dissenting opinion was the crucial insight that surveillance does not always leave perceptible traces in the physical world. Rather, it works insidiously upon the minds of its targets, channeling their actions, their movements, their associations, and their very thoughts into preset grooves and patterns, killing dissent and heterodoxy, and imposing a stifling, psychological conformism upon society. Nor was this opinion outlandish or extreme: from Bentham’s panopticon to Foucault’s disciplinary regimes, the psychological impact that surveillance wreaks upon the human body has been well-known and thoroughly studied.

The disagreement between Justice Subba Rao and the Majority opinion in Kharak Singh is commonly understood to be a disagreement between the “silos approach” to Part III (flowing from A.K. Gopalan, and upheld by the majority), and the integrated approach that read fundamental rights together (espoused by Justice Subba Rao). However, the disagreement actually went much deeper. The majority judges rejected root and branch Justice Subba Rao’s view that surveillance was constitutionally suspect because of the psychological impact it had upon its targets. According to the majority:

“In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness….  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).  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 core disagreement between the majority and Justice Subba Rao, therefore, was not merely an interpretive dispute about how to read the Constitution, but a much deeper and more fundamental clash: was the Constitution’s protection of the human body limited to physical and observable constraints, or did the Constitution protect something more intangible as well – that “realm of privacy where creativity, dissent, and challenges to orthodoxy germinate”?

Puttaswamy’s overruling of Kharak Singh, therefore, opens up a further question. Was Kharak Singh overruled only in a narrow sense – i.e., to the limited extent that the “silos approach” was held to be no longer good law? Or was it overruled in the broader sense, in its very understanding of what fundamental rights are about?

In my view, a close reading of all six judgments makes it clear that the Kharak Singh majority was overruled in the broader sense, and Justice Subba Rao’s dissent was resurrected in its entirety. Consider, for example, Justice Chandrachud’s observation, in paragraph 168 of his opinion:

“Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

This is not mere rhetoric. A few lines before this, Justice Chandrachud referred to the individual’s right to “stand against the tide of conformity in creating a zone of solitude.” (para 168) In his separate opinion, Justice Chelameswar warned of “attempts by governments to shape the minds of subjects… conditioning the thought process by prescribing what to read or not to read… what forms of art alone are required to be appreciated leading to the conditioning of beliefs.” (para 37) Justice Bobde defended the idea of a “zone of internal freedom in which to think.” (para 22) And perhaps most bluntly of all, Justice Kaul observed that “knowledge about a person gives a power over that person… privacy is key to the freedom of thought.” (para 52) An overarching cast was given to this by Justice Nariman who, throughout his judgment, referred to Justice Subba Rao’s opinion as one of the “three great dissents” in the history of Indian constitutional law, making it clear that he was referring to – and resurrecting – that dissent in its richest, deepest, and most comprehensive sense.

What all the separate opinions understood was that without privacy, the core constitutional freedoms that we take for granted will cease to be meaningful. Justice Subba Rao’s eloquent description of a shadowed man to whom the entire country was a prison tells us how important privacy is to the freedom of movement. And it is more than that. We will hesitate to associate with unpopular groups espousing unpopular causes, if we know that we are being watched. There is so much that we will not say to each other if we know that, one day, it could be made public. We will self-censor, draw ever more constricting lines in the sand, and suffocate ourselves with our own caution. We will censor others, warning them not to speak to much, be too radical, or think too differently.

On the Kharak Singh majority’s view, none of that is of constitutional concern. But fortunately, that is no longer the law of the land. Five and a half decades after his solitary dissent, Puttaswamy has ensured that Justice Subba Rao’s insight is now constitutional wisdom. As the above observations show, one of the crucial features of the right to privacy judgment is the understanding that democracy is founded on pluralism and diversity, and pluralism and diversity begin in the mind. Privacy is important not because people have something to hide, but because privacy gives people a sanctuary where they can think, be, and live, in opposition to the dominant cultural, social, and political norms of the time. Privacy allows people a space where they can refuse to conform. And it is in that space where liberty flourishes, the liberty to fashion alternative ways of life, which – ultimately – form and take shape in the public sphere, allowing society always to renew itself.

As Meenakshi Arora, one of the senior counsel for the petitioners observed during oral arguments, to live without privacy is akin to living under the shadow of a perpetual, general warrant in your name, issued by the State – a warrant that chills speech, chills association, chills movement, and chills thought; a perpetual warrant that can only produce the kind of conformity that Justice Jackson, the great American judge, likened to the “unanimity of the graveyard.”

In making the body central to the right to privacy, Puttaswamy has performed the crucial role of making cases like Selvi – which were all about limiting the brute, coercive power of the State over the human body – constitutionally secure. But it has also performed an even more crucial role in giving firm, constitutional footing to the challenges to State surveillance, which are bound to be at the heart of the legal battle between the individual and the State in the years to come.

 

The Supreme Court’s Right to Privacy Judgment – II: Privacy, the Individual, and the Public/Private Divide

(This is the second post in our ongoing series analysing the judgment of the nine-judge bench of the Supreme Court in the “right to privacy” case.)

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Privacy presupposes the existence of a private realm. The struggle for privacy has been, among other things, a struggle between rival understandings of how to define the private realm. In the early judgments of the United States Supreme Court, privacy was understood as a spatial concept, summed up in the old aphorism, “a man’s house is his castle.” Gradually, that concept evolved to include relationships and institutions such as marriage and the family: for example, the US Supreme Court struck down a ban on contraceptives on the basis that it amounted to an illegal interference with the marital relationship, and the Irish Supreme Court struck down a similar ban on the basis that it interfered with the right to family life. Still later, privacy came to be understood as the individual’s right to make private (or intimate) decisions and choices, such as her choice of sexual partner, her choice to abort her foetus, and so on.

The judgment of the Supreme Court in Puttaswamy reflects this gradual evolution of the understanding of privacy over time. Although the formulations across the six separate opinions are slightly different, there are wide areas of overlap, reflecting a general consensus among the nine judges – a consensus that reflects modern-day thinking about privacy. Justice Chelameswar held that privacy has three facets – “repose, sanctuary, and intimate decision.” (para 36) His examples ranged across bodily integrity (corporal punishment), control over personal information (data collection and telephone tapping) and intimate choices (euthanasia and abortion) (paras 38 – 40). Justice Bobde focused on the individual’s right to seclusion, both physical and mental (para 31). Justice Nariman – like Justice Chelameswar – explicitly framed the private realm around the body (“the right to move freely“), the mind (control over the dissemination of personal information), and “autonomy over fundamental personal choices” (para 81). Justice Kaul’s opinion, which was centred around privacy and technology, placed great importance upon the individual’s “right to control dissemination of personal information.” (para 53) In the most elaborate opinion, Justice Chandrachud framed it in the following fashion:

“Privacy has distinct connotations including (i) spatial control; (ii) decisional autonomy; and (iii) informational control. Spatial control denotes the creation of private spaces. Decisional autonomy comprehends intimate personal choices such as those governing reproduction as well as choices expressed in public such as faith or modes of dress. Informational control empowers the individual to use privacy as a shield to retain personal control over information pertaining to the person.” (para 142)

There is one crucial feature about each of these (overlapping) formulations: they place the individual at the heart of privacy. Even Justice Chandrachud – who was the only one to use the spatial formulation – was careful in his choice of words, speaking not about spaces (such as the home) per se, but the “creation of private spaces.” And the act of creation, of course, is an act of an individual, or a group of individuals.

The importance of this might not be immediately visible, and therefore, I want to take us back for a moment to the original, canonical formulation of the right to privacy in Gobind vs State of MP:

“Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.”

Consider each of these words. Home. Family. Marriage. Motherhood. Procreation. Child rearing. What strikes you about them is that they refer either to spaces (home), institutions (family, marriage) or to social functions (motherhood, procreation, child-rearing). The individual has virtually dropped out of the picture, and privacy has attached itself either to physical or functional space, or to institutions and relationships that are made up of individuals, but go far beyond ordinary contractual relationships.

This framing matters immensely, because there has been a long-standing and powerful feminist critique of privacy in its spatial and institutional forms. By “walling off” the private sphere – say, the home or the marriage – from State intervention, unequal power relationships within these spaces and institutions remain untouched. If constitutional norms stop at the (physical) threshold of the home or the (metaphorical) threshold of the family, then what of all the deep, structural inequalities and imbalances of power that exist within those spaces? As Martha Nussbaum sums up the argument, in an essay titled Is Privacy Bad for Women:

“… appeals to the alleged privacy of the home have been used to defend the exemption of marital rape from sexual assault laws, and to discourage state interference with domestic violence or child abuse. It is not that, in principle, people don’t at times believe that coercion voids the presumption of non-interference. But, as [Catherine] MacKinnon says, “the problem is getting anything private to be perceived as coercive.” In the marital home, there is a presumption of consent. As MacKinnon puts it: it is not the woman’s privacy that is being protected here, it is the man’s privacy. Recognizing a sphere of seclusion into which the state shall not enter means that males may exercise unconstrained power.”

Bertha Wilson, a former judge at the Supreme Court of Canada, puts the point even more bluntly, writing that “… family privacy was also designed for the preservation of male authority and superiority within the home…The problem with privacy law has been its tendency to assume, not only that there exists a commonality of interest between family members notwithstanding the inequalities of power, status and independence that exist among them, but also, following from that, that the protection and promotion of the interests of family members can be safely reposed in the male head of the household.”

What this suggests is that while at first glance, spatial, relational and decisional privacy are complementary facets of an overarching privacy right, there are circumstances in which they can clash. And indeed, Indian constitutional history provides us with an excellent example of this clash. Section 9 of the Hindu Marriage Act, titled restitution of conjugal rights, provides that:

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.”

The Andhra Pradesh High Court, in a case called T. Sareetha vs Venkatasubbaiah, struck down this section as unconstitutional, on the basis that it amounted to State interference with a woman’s private decision whether or not to engage in sexual intercourse, and whether or not to carry a child. A few months later, the Delhi High Court disagreed, noting, among other things, that:

“Introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and the married life neither Article 21 nor Article 14 have anyplace. In a sensitive sphere which is at once most intimate and delicate the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond.”

One year later, the Supreme Court agreed with the Delhi High Court and upheld the section on the basis that “it serves a social purpose as an aid to the prevention of break-up of marriage.”

This trilogy of cases paints a stark picture of the clash. The Andhra Pradesh High Court understood privacy as the individual’s right to make uncoerced private choices. The Delhi High Court understood privacy to attach itself to the “home” and the “married life”, but blind to whatever happened within the home or the married life. And the Supreme Court privileged the preservation of the institution of marriage by upholding coercive action against the individual participants of the marriage.

I have discussed Sareetha on this blog before and in a separate academic article elsewhere, and will not rehearse the arguments here. What is important to note, however, is that when Gobind spoke of the intimacies of the “home” and the “married life”, it left open the question of what conception of privacy – spatial, relational, or individual-decisional – might prevail when a conflict arose. And it was that question that was decisively answered by the Supreme Court, with all six judgments locating the right to privacy within the individual. And it was Justice Chandrachud who went a step further, and outlined the clash, as well as its resolution. In a sub-section titled “the feminist critique”, he wrote that:

“Many writers on feminism express concern over the use of privacy as a veneer for patriarchal domination and abuse of women. Patriarchal notions still prevail in several societies including our own and are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of “family honour” resulting in the victim of violence suffering twice over – the physical and mental trauma of her dignity being violated and the perception that it has cause an affront to “honour”. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets. Catherine MacKinnon in a 1989 publication titled ‘Towards a Feminist Theory of the State’ adverts to the dangers of privacy when it is used to cover up physical harm done to women by perpetrating their subjection. Yet, it must also be noticed that women have an inviolable interest in privacy. Privacy is the ultimate guarantee against violations caused by programmes not unknown to history, such as state imposed sterilization programmes or mandatory state imposed drug testing for women. The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.“ (para 140)

In other words, Justice Chandrachud’s point was that any formulation of the right to privacy must take into account the fact that “privacy” – depending on how it is articulated – can both be a tool for the emancipation of women, as well as a weapon of oppression. And as we have seen, each of the six opinions frame “privacy” in a manner that is keenly cognisant of this reality. Gone are the concepts of space, relations, or institutions – to be replaced by the individual, who has the right to create her spaces of solitude, control her personal information, and make her personal decisions. Even though, at various points of his judgment, Justice Chandrachud did go on to mention the family, child-bearing and procreation, his observations in para 140, as well as his formulation of the right to privacy, make it clear that these relationships or institutions carry normative value only because, and insofar as, they are the result of uncoerced, free, individual choice.

Interestingly, this framing of the right to privacy is not only morally attractive, but it is also constitutionally correct. At the heart of the “spatial vision” of privacy is the American Fourth Amendment, that protects the “houses, papers, and effects” of people from searches and seizures. As counsel after counsel on the side of the State reminded the Supreme Court this July, the framers of the Constitution discussed including a clause similar to the Fourth Amendment, and then rejected it. Nor does the Indian Constitution place the “family” at its heart, like the Irish Constitution does – in fact, as we have discussed before, Ambedkar specifically pointed out during the Constituent Assembly Debates that it was the individual who was the basic unit of the Constitution . Consequently, there was no warrant for the Supreme Court to ground a right to privacy in spaces (as the US Supreme Court continues to do) or in relationships or institutions (in fact, more than one judge referred to the Constituent Assembly Debates, and points out that privacy was broader than the narrow, space-oriented concept that the framers had rejected).

What remains? The individual – the Constitution’s basic unit, and – in the Supreme Court’s judgment – the only bearer of the right to privacy.

What might this mean for the future? To start with, surely the judgment in Sareetha requires a relook (Justice Chelameswar, in fact, hinted as much when he notes that status of “personal association” as an aspect of the right to privacy remained “doubtful”, and cited Sareetha) (para 40). More importantly, however, the Delhi High Court is presently hearing a constitutional challenge to the marital rape exception. It is here that we will see the clear clash between the individual privacy rights to bodily integrity, dignity, and decisional autonomy on the one hand, and the normative claims of the institution of marriage on the other. Will the Delhi High Court, then, become the first Court to apply the Supreme Court’s powerful new articulation of the fundamental right to privacy? Time will tell.

In 1971, Herbert Marcuse wrote, in An Essay on Liberation, that “self-determination begins at home – and that is with every I, and the We whom the I chooses.” Last week, the Supreme Court endorsed that proposition – so deeply contested for all these years, and yet, at the end of the day, so simple, and so basic.

The Supreme Court’s Right to Privacy Judgment – I: Foundations

On the 24th of August, a nine-judge bench of the Supreme Court delivered its verdict in Justice K.S. Puttaswamy vs Union of India, unanimously affirming that the right to privacy is a fundamental right under the Indian Constitution. The verdict brought to an end a constitutional battle that had begun almost exactly two years ago, on August 11, 2015, when the Attorney-General for India had stood up during the challenge to the Aadhaar Scheme, and declared that the Constitution did not guarantee any fundamental right to privacy. The three judges hearing the case referred the constitutional question to a larger bench of five judges which, in turn, referred it further to a nine-judge bench. The case was argued over six days in the month of July, during which the Union of India, with many supporting state governments, the UIDAI and TRAI, repeated the Attorney-General’s 2015 claim – a claim which, as we shall see, was decisively rejected by the Court.

Six out of nine judges – Chelameswar, Bobde, Nariman, Sapre, Chandrachud and Kaul JJ – delivered separate opinions (Chandrachud J wrote for himself and on behalf of Khehar CJI, Aggarwal and Nazeer JJ). Spanning 547 pages, Puttaswamy is undoubtedly a historic and landmark verdict of our times, and one of the most important civil rights judgments delivered by the Supreme Court in its history. Apart from affirming the existence of the fundamental right to privacy under the Indian Constitution – for which each of the nine judges must be unreservedly applauded – Puttaswamy will have a profound impact upon our legal and constitutional landscape for years to come. It will impact the interplay between privacy and transparency and between privacy and free speech; it will impact State surveillance, data collection, and data protection, LGBT rights, the legality of food bans, the legal framework for regulating artificial intelligence, as well as many other issues that we cannot now foresee or anticipate. For this reason, the judgment(s) deserve to be studied carefully, and debated rigorously in the days and weeks to come.

On this blog, I shall write a series of essays analysing various facets of the Court’s judgment(s). There are two possible ways of going about this task: first, to analyse each judge’s opinion separately, discover points of overlap and bases of agreement, and finish with an analysis of the verdict as a whole. The second is to identify some of the core themes that occur throughout the separate opinions, and address them separately. In this series, I shall be adopting the latter course of action – that is, a thematic analysis of the verdict and its component judgments.

At the outset, it is important to draw an important distinction between what is found in the operative order of the Court, and everything else that is found in the six separate opinions. The operative order is a page-long statement at the end of the verdict, signed by all the nine judges, and it is only this order that is legally binding upon future benches of the Supreme Court and the High Courts. There are two reasons for this. The first is that it is this order that answers the two referral questions that were before the Court, and the reason why the nine-judge bench was established in the first place (see below). And the second is that with six separate opinions, there is no real “majority” judgment (Justice Chandrachud’s opinion, that commands the support of four judges out of nine, is a plurality, but not a majority). There is likely to be extensive debate over whether there are certain legal propositions that command the support of five or more judges. This is an important debate, because these propositions – and how they are interpreted – will inevitably shape the way that future benches decide concrete privacy cases brought before them.

Notwithstanding that, however, it is important to remember that ultimately, the Court was answering two legal questions put to it by a smaller bench. In the course of answering these questions, it was obliged to traverse wide and extensive legal terrain. However, the very fact that this entire enquiry was conducted in the abstract should caution us against treating the discussion beyond the referral questions as laying down binding propositions of law. Rather, the 547 pages of discussion, in my opinion, are better understood as setting up signposts and guidelines that will assist lawyers, judges, and academics in shaping the contours of the right to privacy under the Indian Constitution, in the years to come.

To take a few examples, this verdict does not – and could not – decide whether and to what extent the Aadhaar scheme is constitutional, whether and to what extent public figures can prevent the publication of unauthorised biographies or biopics, or the circumstances and the extent to which under which the State can surveil its citizens. What this verdict does do, however, is that it provides the constitutional framework within which these cases are to be debated and decided, when they come before the courts.

Therefore, in this, the first essay in the series, I will begin the discussion by examining the operative order of the Court: the unanimous verdict of nine judges, which is unquestionably now the law of the land. This operative order lays down four simple propositions of law.

Proposition One: The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled.

Recall that the reason for the initial reference was the State’s contention that the judgments of the Supreme Court in M.P. Sharma (8 judges) and in Kharak Singh  (6 judges) had held that there was no fundamental right to privacy under the Indian Constitution, and all subsequent judgments to the contrary had been decided by smaller benches. Earlier on this blog, I had summarised the Petitioners’ arguments on why neither of these judgments supported the State’s claim. In Puttaswamy, four out of the six opinions examined the issue in detail, and entirely accepted the Petitioners’ arguments. On M.P. Sharma, Justices Nariman (para 27), Chelameswar (para 7), Bobde (para 5), and Chandrachud (para 26) all agreed that M.P. Sharma only held that the American Fourth Amendment could not be incorporated into the guarantee against self-incrimination in the Indian Constitution (Article 20(3)). However, the Fourth Amendment, which was limited to protecting “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” was not, and had never been, exhaustive of the concept of privacy, even in the United States. Consequently, even if M.P. Sharma was correct in refusing to find an analogue to the Fourth Amendment in Article 20(3) of the Indian Constitution, that was no warrant for holding that there was no fundamental right to privacy – a much broader and more compendious concept. In the words of Justice Bobde:

“M.P. Sharma is unconvincing not only because it arrived at its conclusion without enquiry into whether a privacy right could exist in our Constitution on an independent footing or not, but because it wrongly took the United States Fourth Amendment – which in itself is no more than a limited protection against unlawful surveillance – to be a comprehensive constitutional guarantee of privacy in that jurisdiction.”

Proposition Two: The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled

In Kharak Singh, the Supreme Court had considered the constitutionality of various forms of police surveillance upon a “history-sheeter”. It had upheld reporting requirements, travel restrictions, shadowing, and so on (by arguing, in part, that there was no fundamental right to privacy), but had struck down nightly domiciliary visits as a violation of “ordered liberty”.

The Court’s rejection of Kharak Singh was based on two prongs. First, it held that the judgment was internally contradictory, because the Court could not have struck down domiciliary visits on any other ground but that of privacy; indeed, in doing so, the Court had itself quoted American judgments affirming a right to privacy. As Justice Nariman noted:

“If the passage in the judgment dealing with domiciliary visits at night and striking it down is contrasted with the later passage upholding the other clauses of Regulation 236 extracted above, it becomes clear that it cannot be said with any degree of clarity that the majority judgment upholds the right to privacy as being contained in the fundamental rights chapter or otherwise. As the majority judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be given much value as a binding precedent.” (paragraph 42)

Justices Bobde (para 6), Chelameswar (para 9), and Chandrachud (para 27) agreed that there existed a “logical inconsistency” within Kharak Singh, in that the Court could not have struck down one facet of police surveillance without invoking the right to privacy. Furthermore, the Justices also agreed that in any event, Kharak Singh’s finding that there was no right to privacy under Article 21 of the Constitution was based on a narrow reading of the phrase “personal liberty”, which in turn was a relic of the judgment in A.K. Gopalan. In A.K. Gopalan, the Supreme Court had adopted what Justice Chandrachud called the “silos” approach to Part III of the Constitution, holding that each separate clause dealt with a separate right, and each clause was hermetically sealed from all other clauses. On this reading, “personal liberty” under Article 21 contained only what remained after subtracting the various freedoms guaranteed in Article 19(1). The “silos approach”, however, had been comprehensively rejected by the Supreme Court in R.C. Cooper, and in fact, in Maneka Gandhi, the majority judgment in Kharak Singh had been held to be overruled in view of this development. Consequently, as Justice Chandrachud observed:

“The jurisprudential foundation which held the field sixty three years ago in M P Sharma and fifty five years ago in Kharak Singh has given way to what is now a settled position in constitutional law. Firstly, the fundamental rights emanate from basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected rights under Article 19 does not denude Article 21 of its expansive ambit. Secondly, the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom. Thirdly, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness, imparts meaning to the constitutional guarantees in Part III.” (para 24)

Proposition Three: 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. 

The rejection of the State’s claim based on M.P. Sharma and Kharak Singh was only half the story. The affirmative case for why privacy is a fundamental right remained to be made. At the bar, privacy was argued to be latent within liberty, autonomy, and human dignity, apart from being foundational towards ensuring that the freedom of speech, expression, association, and religion, remained meaningful. All these arguments figure, in different ways, in each of the six opinions.

Justice Chelameswar, for example, grounded his opinion in the concept of liberty. Defining “privacy” as comprising of three aspects – “repose”, “sanctuary”, and “intimate decision”, he held that each of these aspects was central to the idea of liberty guaranteed by both Articles 21 and 19 (paragraph 36). He then took a series of examples of privacy violations (forced feeding, abortion, telephone tapping, and intimate association, to name a few), and grounded them within the broader rights to freedom of the body (Article 21) and freedom of the mind (Article 19) (paras 38 – 40).

Justice Bobde founded his judgment on “two values… the innate dignity and autonomy of man” (para 12), which he located in the overarching structure of the Constitution. In addition, he held that privacy was a “necessary and unavoidable logical entailment of rights guaranteed in the text of the constitution” (para 35). In Justice Bobde’s opinion, we find the important insight that to be effectively exercised, the liberties in Article 19(1) (speech, expression, association, assembly, movement) and 21 (personal liberty) require, on occasion, to be exercised in seclusion. Privacy, therefore, was “an enabler of guaranteed freedoms” (para 29) and “an inarticulate major premise in Part III of the Constitution.” (para 25)

Justice Nariman made an overarching argument, linking the three aspects of privacy (bodily integrity, informational privacy, and the privacy of choice) (paragraph 81) with the preamble of the Constitution, which guaranteed democracy, dignity, and fraternity (paragraph 82). It was here that the constitutional foundations of privacy could be found. The connection was drawn by him in this manner:

“The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information.” (para 85)

In other words, individual self-development – which lay at the heart of democracy, dignity, and fraternity – was simply meaningless without a right to privacy that guaranteed, at the minimum, security of the body, security of personal information, and security of intimate choices.

Very similar reasoning – based on dignity and individual self-determination – was employed by Justice Sapre, who noted that dignity imposes “an obligation on the part of the Union to respect the personality of every citizen and create the conditions in which every citizen would be left free to find himself/herself and attain selffulfillment.” (para 8) It was also employed by Justice Kaul, who brought dignity and liberty together, noting that “privacy… is nothing but a form of dignity, which itself is a subset of liberty” (para 40) and “key to the freedom of thought (para 52).

These complementary strands of reasoning were brought together by Justice Chandrachud in his judgment. He grounded privacy in dignity (paras 32, 107, and 113), “inviolate personality… the core of liberty and freedom” (para 34), autonomy (paras 106 and 168), liberty (para 138), bodily and mental integrity (para 168), and across the spectrum of protected freedoms (para 169). Therefore:

“The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.” (para 169)

There is something of tremendous significance here. Even as it agreed with the Petitioners that privacy was a fundamental right, the Court could have chosen to give it a narrow cast and frame. The Court may have limited it to an aspect of dignity, or restricted it to a derivative right under Article 21. This would have thrown up difficult initial barriers in future cases, compelling petitioners to shoehorn their claims within the shifting and largely symbolic concept of dignity (and jurisdictions such as Canada provide salutary warnings about how easy it is to constrict rights by pegging them to dignity), or the (diluted) umbrella of Article 21. The Court, however, did the exact opposite. Starting with the basic idea that privacy encompassed the body (and bodily integrity), the mind (and informational self-determination), and intimate choices, all nine judges agreed that privacy was at the heart of individual self-determination, of dignity, autonomy and liberty, and concretely, inseparable from the meaningful exercise of guaranteed freedoms such as speech, association, movement, personal liberty, and freedom of conscience. Privacy, therefore, was both an overarching, foundational value of the Constitution and incorporated into the text of Part III’s specific, enforceable rights.

This, in my view, is at the heart and soul of Puttaswamy, and the primary reason why this judgment deserves to be a landmark, not only in the annals of Indian constitutional jurisprudence, but across the world. The verdict locates privacy in the grand sweep of democracy and within the core human values of autonomy, dignity, and freedom, while also placing it within the realm of the concrete, the flesh-and-blood relationship between the individual and the State. In its attention to the abstract and to the world of concepts, it does not ignore the world in which individuals struggle against coercive State power; and in its care to outline how privacy is concretely meaningful, it does not forget to include it within that constellation of ideas that fame this reality and give it meaning. This is a difficult path to travel. However, all nine judges have demonstrated the intellectual courage required to travel it, and the result is a ringing endorsement of the central place of privacy in a modern, constitutional, democratic republic.

Proposition Four: Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law. 

As the Petitioners had repeatedly argued before the Court, there was no need to reinvent the wheel. After Gobind vs State of MP, there was an unbroken line of Supreme Court judgments, spanning forty years, that had repeatedly affirmed the status of privacy as a fundamental right (Justice Chandrachud’s judgment examines all the precedent on the point). Petitioners asked the Court to affirm that line of judgments. The Court agreed.

The consequences of this – which we shall discuss in some of the subsequent posts – are that the extended discussions in the separate opinions on the scope of privacy, its operation in the public and the private spheres, and its limitations, cannot be studied in isolation, but in the context of forty years of case law. The task of future benches now is to build upon this existing jurisprudence, taking into account, of course, the insights of Puttaswamy.

This, in conclusion, brings me to an important point. As Apar Gupta points out:

“While the privacy judgement is a cause for celebration, its full benefit will only come when it is applied to actual state actions that undermine privacy. Adherence to constitutional principle is not an academic exercise, but requires a prompt protection of real rights and liberties. Judicial action should spring at moments when the state oversteps onto the citizen. Few would dispute that determinations on privacy would be of greater benefit when the Supreme Court protects us with foresight rather than retrospect.”

The nine-judge bench of the Supreme Court has given us an outstanding foundation for a progressive civil liberties jurisprudence, located in ideas of liberty, dignity, autonomy, and privacy. In the times to come, citizens will look to the Court to build upon that foundation, and to carry through with the beginnings that it has made in Puttaswamy. But in future, the situations that come before the Court will no longer be abstract, the questions will no longer be purely legal, and the pressures will be real, not merely academic. Puttaswamy only makes possible what will, in the last analysis, require judicial courage and wisdom to accomplish: meaningful protection of the rights of the individual against the creeping claims of the State. But it is that very possibility – which, if the State’s arguments had been accepted, would have been snuffed out at its very inception – that gives us cause to celebrate today.

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[To be cont’d.]

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(Disclaimer: The writer assisted Mr Arvind Datar, who appeared for one of the Petitioners in this case.)

The Supreme Court’s Triple Talaq Judgment

Today, a narrowly divided Supreme Court held that the practice of instantaneous triple talaq (talaq – ul – biddat) [hereinafter “triple talaq” for short] which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was legally invalid. On the outcome, the Court split three to two: Justices Nariman, Lalit and Joseph in the majority, with the Chief Justice and Justice Nazeer dissenting. However, Justice Nariman (writing for himself and Justice Lalit) and Justice Joseph used different – and partially contradictory – reasoning to arrive at the conclusion. With what is effectively a 2 – 1 -2 split, there will be considerable controversy over what, precisely, the Supreme Court held in this case. Before discussing the different opinions, therefore, it will be useful to provide a brief overview.

The constitutional status of triple talaq depended, in part, upon its legal status. In particular, there was a dispute over whether triple talaq had been codified into statutory law by the 1937 Muslim Personal Law (Shariat) Application Act. This was important, because all statutes are subject to fundamental rights. However, under existing jurisprudence, uncodified personal law is exempt from fundamental rights scrutiny. Therefore, if the 1937 Act did codify triple talaq, then the Court could examine whether it was consistent with the Constitution. If it did not, however, then the Court would have to ask whether triple talaq was part of Muslim personal law; and if so, whether to uphold its existing jurisprudence exempting personal law from fundamental rights scrutiny, or to reconsider it.

Within this framework, this is how the Court’s three judgments mapped out:

A. Does the 1937 Act codify triple talaq under statutory law?

Yes: Nariman and Lalit JJ

No: Kurien Joseph J., and Khehar and Nazeer JJ

A1. If the answer to A is yes, then does triple talaq (as codified by the 1937 Act) violate the Constitution?

Yes: Nariman and Lalit JJ (Article 14)

No: _____

N/A: Kurien Joseph J., and Khehar and Nazeer JJ

B. If the answer to A is no, then is triple talaq part of Muslim personal law – that is, is it uncodified Muslim personal law?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J

N/A: Nariman and Lalit JJ

B1: If the answer to B is yes, then can triple talaq be tested under the Constitution? 

Yes: ______

No: Khehar and Nazeer JJ

N/A: Nariman and Lalit JJ, Kurien Joseph J

C. In any event, is triple talaq protected under Article 25 as an “essential practice” of Islam?

Yes: Khehar and Nazeer JJ

No: Kurien Joseph J., Nariman and Lalit JJ.

Therefore:

A majority of three judges held that the 1937 Act did not codify triple talaq. Beyond that, however, there is no clear majority for any consequential legal proposition in this case (apart from a momentous change on the legal status of the doctrine of arbitrariness, which I shall deal with in a separate post). Justice Kurien Joseph – the “swing vote” in this case – agreed with the dissent that triple talaq had not been codified by the 1937 Act. This was at odds with the foundation of the judgment of Justices Nariman and Lalit, who held that the 1937 Act did codify triple talaq. However, Justice Joseph then disagreed with the next step in the dissent’s reasoning, which was the proposition that triple talaq was part of Muslim personal law (this, naturally, brought him into agreement with Justices Nariman and Lalit on the issue that triple talaq was not an essential or integral aspect of Islam, and therefore protected under Article 25 of the Constitution). What we therefore get, at the end of the day, is a majority in terms of outcome (3:2), a different majority on the interpretation of the 1937 (3:2) Act, but no majority for the reasoning leading up to the outcome.

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The Judgment of Nariman J (joined by Lalit J)

Justice Nariman began by noting that talaq – ul – biddat was only one of the many permissible forms of divorce under Islamic law, and a strongly disapproved one at that (paragraph 9). With this brief background, he analysed the 1937 Act. Noting the Statement of objects and Reasons of the Act, which recognised a demand from the Muslim constituency that “Muslim Personal Law (shariat) should be made applicable to them.” Section 2 of the Act then stated that “Notwithstanding any custom or usage to the contrary… regarding… marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula, and mubaraat… the rule of decision in cases where parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Nariman held that the plain meaning of Section 2 was that, after 1937, the shariat was accorded statutory sanction in India. Or, to put it in simpler language, after the 1937 Act, what made the shariat legally enforceable in India (as applied to Muslims) was the 1937 Act. Before the 1937 Act, colonial judges were applying and enforcing the shariat (presumably) directly as religious sanctions, drawn from the Quran, the Hadith, and other authoritative texts. The 1937 Act, however, now mediated between Islamic scripture and its application in concrete cases.

It was argued by the Muslim Personal Law Board that the opening words of Section 2 – “notwithstanding any custom or usage to the contrary…” implied that the purpose of the 1937 Act was not to enforce Shariat, but to remove “custom and usage” as sources of Islamic personal law. Justice Nariman swiftly rejected this argument, holding that to allow a non-obstante clause to determine the interpretation of a Section that was otherwise unambiguous, would amount to “the tail wagging the dog” (paragraph 16).

Consequently, Justice Nariman was able to conclude that the 1937 Act (which included the statutory sanction of triple talaq) “would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.” (para 21). In other words, if the Court found that the practice instantaneous triple talaq violated any constitutional provision, then to the extent that Section 2 of the 1937 Act authorised it, it would be unconstitutional and void.

This would be true, of course, unless triple talaq was saved by any other constitutional provision. The Muslim Personal Law Board argued that it was saved by Article 25, which guaranteed the freedom of conscience and religion. Justice Nariman rejected this argument, pointing out that under Indian jurisprudence, Article 25 only protected “integral” or “essential” aspects of religion. In view of extensive and uncontroverted religious authority holding that triple talaq was an “irregular” way of conducting divorce, it could not, under any circumstances, be held to be an essential aspect of Islam (or under the Hanafi school of Islam, which practiced it) (paragraph 25).

Having strongly affirmed that it was the duty of the Court to strike down unconstitutional laws, and not leave the task up to Parliament (paras 26 – 30), Justice Nariman then came to the core of the case – the examination of the constitutionality of instantaneous triple talaq (paragraph 31 onwards). Focusing on Article 14 of the Constitution, he asked whether a law or a statute could be invalidated on the ground of “arbitrariness” (for a summary of the constitutional controversy on this point, see Mihir’s guest post here). After a detailed and technical discussion, Justice Nariman found that arbitrariness had always been a ground of legislative review under Article 14 (paragraphs 32 – 55), and judgments that held to the contrary were incorrectly decided.

The standard of arbitrariness required that if a law was “disproportionate, excessive… or otherwise manifestly unreasonable“, then it would be struck down under Article 14 (paragraph 45). Applying the standard to instantaneous triple talaq, Justice Nariman then held, in his concluding paragraph:

“Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.”

Three things stand out in Justice Nariman’s judgment. The first is his refusal to consider the question of whether personal laws are subject to the Constitution (although, in paragraph 22, he specifically casts doubt on the correctness of Narasu Appa Mali, and opines that it might need to be reviewed). In a guest post on this blog, Praharsh Johorey argued that the triple talaq case was an ideal opportunity to reconsider a judgment as clearly wrong as Narasu; elsewhere, I argued that a judgment invalidating triple talaq could either do it narrowly, through the 1937 Act and the essential religious practices test, or by taking a broad route, and reversing Narasu Appa Mali. Justice Nariman chose the narrow route, and in that sense, there is a feeling of a remarkable opportunity missed. To be fair, technically, it is difficult to fault him for this: once he had held that the 1937 Act codified Muslim personal law, there was no need for him to consider any other question. On this blog, I have often argued that judges should not go charging like wild horses over constitutional terrain, and ought to decide cases on the narrowest grounds available to them. I cannot, in good faith, criticise Justice Nariman for doing precisely that. Nonetheless, the sense of regret remains.

The second issue is Justice Nariman’s reliance upon the essential religious practices test to deny triple talaq the protection of Article 25. On this blog, I have tried to point out before that ERP is both constitutionally unprincipled and impractical, because it involves a secular Court making ecclesiastical judgments. I am not alone in this criticism: for the last four decades, ERP has been criticised by both scholars and practitioners; apart from a dissenting judgment by Justice Lakshmanan in 2004, however, it has never been seriously challenged within the judiciary. This case marked an ideal starting point for the Court to jettison this seriously flawed approach, and hold – along with Ambedkar in the Constituent Assembly Debates – that Article 25 simply wasn’t applicable to the laws of marriage, divorce, inheritance, which had a tangible impact upon the civil status of parties; in other words, one cannot, under the cover of religion, claim a vast domain of human life off-limits from constitutional values. As Ambedkar had said:

“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

In this second sense, the judgment represents a chance missed.

And thirdly, it appears to me that – notwithstanding his spirited revival of the doctrine of arbitrariness – Justice Nariman’s constitutionality analysis misplaces priorities. The core problem with instantaneous triple talaq was not its arbitrariness, but how, in giving men a unilateral power of instant divorce, it discriminated against Muslim women. It was more a question of unequal power and inequality (Article 15) than the rule of law (Article 14). Again, technically, one cannot fault the reasoning; in a broader sense, however, it seems to have achieved the right outcome, for the right reasons, but perhaps not… the best reasons.

The Judgment of Joseph J (for himself)

Justice Joseph wrote a brief judgment. He held that the Supreme Court, in Shamin Ara, had already held that “instantaneous triple talaq” was invalid under Islamic law (paragraph 1). It was necessary for him to carry out this analysis, because – in his view – the 1937 Act only made Islamic personal law applicable to Muslims, but was “not a law regulating talaq.” (paragraph 4) Noting that the primary authoritative source for Islamic personal law was the Quran, Justice Joseph then examined the Quranic suras that dealt with talaq, and found that:

“The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.” (paragraph 10)

Justice Joseph then cited multiple High Court judgments, leading up to the Supreme Court judgment in Shamin Ara, which had affirmed this proposition (paragraphs 11 – 23), and concluded that:

“Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”

It is important to note that Joseph J. expressed no opinion on the question of whether uncodified personal laws are subject to the Constitution, and therefore, there is no majority in this judgment that supports that point of view. In paragraph 5, he made the limited observation that “I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman, J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.” That is, his disagreement with Nariman J. was limited to the question of whether triple talaq, through the 1937 Act, could be tested under Article 14; however, since Nariman J. himself expressed no opinion on whether, if triple talaq remained uncodified, it could be tested under Article 14 (by overruling Narasu), Justice Joseph could not possibly have disagreed with him on this point, because there was nothing to disagree with.

That said, Justice Joseph’s analysis of Section 2 of the 1937 Act does not seem correct. The distinction between the 1937 Act enforcing the shariat, and the Act “regulating” triple talaq, is irrelevant to the constitutional analysis. What matters is not that the procedure of triple talaq is contained in a statute, but that the source of authority of triple talaq is a statute. The moment that is conceded, the statute in question – and along with everything that it authorises – becomes subject to Part III and the Constitution. On this issue, Justice Nariman’s view appears to be the correct one.

The Judgment of the Chief Justice (for himself and Justice Nazeer)

The Chief Justice’s judgment has the merit that, after page 176, when the recording of submissions ends, and the analysis begins, it is clear and easy to follow. That, however, is its only merit. The judgment advances novel constitutional propositions unsupported by the constitutional text, history, or precedent, and it severely undermines the constitutional balance between individual rights and religious precepts.

The Chief Justice began by noting that the sources of Islamic personal law are not limited to the Quran (paragraph 121), and that, in fact, all parties have agreed that talaq – ul – biddat is “bad in theology but good in (Islamic personal) law” (paragraph 127). Declining to go into an interpretation of rival hadiths provided by both parties, he noted that:

“The fact, that about 90% of the Sunnis in India, belong to the Hanafi school, and that, they have been adopting ‘talaq-e-biddat’ as a valid form of divorce, is also not a matter of dispute. The very fact, that the issue is being forcefully canvassed, before the highest Court of the land, and at that – before a Constitution Bench, is proof enough. The fact that the judgment of the Privy Council in the Rashid Ahmad case1 as far back as in 1932, upheld the severance of the matrimonial tie, based on the fact that ‘talaq’ had been uttered thrice by the husband, demonstrates not only its reality, but its enforcement, for the determination of the civil rights of the parties. It is therefore clear, that amongst Sunni Muslims belonging to the Hanafi school, the practice of ‘talaq-e-biddat’, has been very much prevalent, since time immemorial.” (paragraph 144)

And:

“We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.” (paragraph 145)

The problem with this argument is that paragraph 145 does not follow from paragraph 144. Under the essential religious practices test, as applied by the Supreme Court over time, not everything sanctioned by religion is integral to it. The Chief Justice slid seamlessly between noting that instantaneous triple talaq is practiced by Indian Muslims as a part of their religion, to holding that is an essential part of it, without showing independently that the threshold of ERP has been met. Recall that the Supreme Court has held, in the past, that neither worshipping at a mosque nor cow-slaugher on Id, are integral parts of Islam, on the basis that Islam does not mandate either practice. Under this standard, in this case, it would under the ERP, it would have to be shown that Islam mandated instantaneous triple talaq. This, the Chief Justice did not show; and while I disagree with the ERP test, given that the Chief Justice had chosen to apply it, I think it important to point out that he applied it incorrectly.

The Chief Justice then advanced a proposition that is utterly bizarre. In paragraph 146, he said:

“‘Personal law’ has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. It needs to be kept in mind, that the stature of ‘personal law’ is that of a fundamental right. The elevation of ‘personal law’ to this stature came about when the Constitution came into force. This was because Article 25 was included in Part III of the Constitution. Stated differently, ‘personal law’ of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25.”

Notably, no authority is advanced to support this proposition. That is because there is none. No Court has held that “personal law” is a fundamental right. In fact, that sentence is incoherent – how can “personal law” have the “stature” of a “fundamental right”? Rights under Article 25 belong to individuals, not to “laws”. More importantly, Article 25 does not confer constitutional protection upon personal laws. It guarantees that “all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

To go from “all persons are equally entitled to… freely… practice… religion” to “Article 25 protects personal laws” is to put language into a rack and torture it into a shapeless mass. What might have the Chief Justice been thinking? Perhaps he was thinking this: personal law falls within religion. Article 25(1) protects religion. Therefore, Article 25(1) protects personal laws. That train of thought, however, misses the fact that Article 25(1) does not protect religion per se, but protects an individual’s freedom to practice her religion; in other words, it does not protect religious norms, rules, or institutions, but individual rights. Now, it might be argued that, potentially, a Muslim man could approach the Court and argue that by denying him the option of triple talaq, his Article 25(1) right was being violated; such a case, however (apart form being decided on separate grounds altogether), is conceptually different from conferring the “stature” of fundamental rights upon an entire system of (personal law) rules, and the distinction is crucial.

Most of all, what is entirely unacceptable about this proposition is that, as the Chief Justice himself observed (in the extract quoted above), marriage affects an individual’s civil status and civil rights. The effect of holding that “personal laws” are protected under the Constitution’s religious freedom guarantee is to grant to religious bodies the power of determining individuals’ civil status (and their civil rights), without constitutional recourse. This seems to be a negation of the very basic meaning of secularism.

The Chief Justice then held that the 1937 Act did not codify triple talaq, but only negated the use of “customs and usages” in adjudicating cases between Muslims (paragraph 156). I have already argued above that this is a flawed reading of the 1937 Act. Consequently, he held that the only limitations upon personal law can be those found in the opening phrase of Article 25(1): “public order, health, and morality.” On this, he noted:

“… it is impossible to conclude, that the practice impinges on ‘public order’, or for that matter on ‘health’. We are also satisfied, that it has no nexus to ‘morality’, as well.“

But why? He provided no reasoning for this. If “morality” under Article 25(1) refers to the concept of constitutional morality, then surely gender equality and non-discrimination art part of that definition of morality? And if not, what else does morality mean? What does the Chief Justice think it means, and why is instantaneous triple talaq “moral”? There are no answers.

The other preliminary phrase in Article 25(1) is “subject to… the other provisions of this Part” (that is, Part III). The Chief Justice held that this is also inapplicable, because Articles 14, 15 and 21 – which triple talaq potentially violates – are only applicable to State action against individuals, and not to private violations of rights (paragraph 165). However, not only does this argument go against the Supreme Court’s recent liquor ban judgment, which the Chief Justice himself signed on to, and which held that Article 21 places an affirmative obligation upon the State to protect fundamental rights – but it also ignores the fact that triple talaq is only legally effective because it is sanctioned by the Courts. Triple talaq does not operate in some parallel, extra-legal domain; rather, it is not only recognised (as an aspect of personal law) by the State, but it can also be enforced through the courts. Therefore, the State involvement is inextricable.

Lastly, the Chief Justice addressed an argument that instantaneous triple talaq violates principles of constitutional morality, which he rejected by reiterating the proposition that personal laws themselves are a part of fundamental rights, and ending with this paragraph:

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.” (paragraph 193)

It is a particularly stark irony that Chief Justice needed to replace the word “persons” (which is what Article 25(1) says) with the word “entities”, in order to sustain this unsustainable conclusion.

I have engaged with the dissent at some length, because a 3 – 2 split is a judgment by a hair’s breadth. Had one judge flipped, the dissent would have become the majority. While I feel that the majority opinions could have been stronger on some points, I feel – even more strongly – that the dissent, which elevates personal law to the status of the Constitution, and in fact, elevates it above all other fundamental rights in Part III, would – had it carried the day – done profound damage to the constitutional fabric. It would have fatally undermined the framers’ attempts to frame a secular Constitution, where religion could not become the arbiter of an individual’s civil status and her civil rights, and would, in a single stroke, have set back a long struggle for the rights of basic equality and democracy against the claims of religion.

What this divided judgment means for future jurisprudence dealing with the relationship between personal law and the Constitution, remains to be seen. The question is perhaps more open now than it ever was.

 

Call for Submissions: The Indian Law Review Literature Review Prize 2017

Indian Law Review hopes to publish at least one Literature Review (of around 10,000 words, including footnotes) in every volume. We envisage a Literature Review will not only comprehensively survey existing scholarship (including out-of-print earlier scholarship) on any discrete area of Indian law, but also organise such scholarship thematically and subject it to critical examination. Locating the scholarship in the context of the development of Indian law in that area will be necessary. Some attention to comparative scholarly and doctrinal debates in other jurisdictions may also be welcome. We expect the Literature Review to be a complete initial guide to any scholar wishing to begin research in that area of law.

We will offer a cash prize of INR 25,000 (Indian Rupees Twenty-five Thousand only) to the author of the entry selected for publication (the prize will be awarded in equal shares if the piece is co-authored). We expect the author to be a published expert in that area of law, or have a PhD in that area, or (at least) be pursuing an advanced PhD in that area. The deadline for submitting a Literature Review for our inaugural Literature Review Prize is 15 October 2017 (submissions made after that date would still be considered for publication, but we reserve discretion over the eligibility of late submissions for this prize). Any shortlisted author must also commit to working with the editors through November 2017 to improve the submission in light of reviewers’ comments and suggestions.

Submissions can be made on our dedicated submissions portal. Contributors are advised to read these Instructions for authors before making any submission. Potential contributors may direct any queries (including the suitability of their chosen area of law for the Literature Review) to our Reviews Editor Dr Arun Thiruvengadam <arun.thiruvengadam@apu.edu.in>.

The Right to Privacy Hearing: Problems and Prospects

Yesterday, a nine-judge bench of the Supreme Court reserved judgment on the issue of whether there exists a fundamental right to privacy under the Indian Constitution. The case, which arose out of the constitutional challenge to the Aadhaar Scheme (and which has been covered extensively on this blog), was argued over seven days. An informal record of the oral hearings, prepared by two of us, is available here (filter for bias, because both Prasanna and I were representing the Petitioners), and the parties’ written submissions can be accessed on LiveLaw.

As is evident from the record of oral hearings, counsel on both sides, as well as the judges, undertook extensive and divergent intellectual journeys over the seven days, ranging from Aristotle, Descartes and Rousseau, through a century of American Supreme Court jurisprudence, to the European Data Protection Directive. In this essay, however, I’m going to set a very narrow course: I will focus on the two concrete reference questions that necessitated the establishment of the nine-judge bench, and argue that they deserve equally concrete answers. This is not only because judicial discipline – as specified by the Supreme Court in Mirajkar’s Case – requires the Court to cleave closely to the referral questions, but because privacy, which is a notoriously slippery and difficult concept at the best of times, is particularly unsuited to being resolved by an abstract enquiry. In jurisdictions all over the world, privacy jurisprudence has evolved over time, on a case-to-case basis, responding to changes in technology, surveillance, social mores, and ways of being in the world. Nine-judge benches are rare sightings, and whatever the Court decides, its decision is bound to hold the field for a few generations to come. It is therefore particularly important that the Court confine its opinion to the narrowest terms possible, lest, in the absence of any concrete case before it, it nonetheless ends up laying down dicta that will limit or stifle the evolution of privacy jurisprudence for a long time to come.

How then did this case come before a nine-judge bench? On August 11, 2015, while constitutional challenges to the Aadhaar scheme were being made before a three-judge bench, the Union of India argued that the main ground of challenge – the right to privacy – could not be raised, because the Indian Constitution did not guarantee a fundamental right to privacy. The Union of India relied upon two early judgments – M.P. Sharma vs Satish Chandra (1954, 8 judges) and Kharak Singh vs State of UP (1962, 6 judges), which contained observations suggesting that there may not be a fundamental right to privacy. The Union argued that all future judgments – starting with Gobind vs State of MP (1975, 3 judges), which had held that there was a fundamental right to privacy, had been decided by smaller benches, and were therefore not good law. It was in response to this contention that the Court passed an order referring the case to a higher bench, and framing two questions. In paragraph 13, the Court stated:

“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.”

The two questions, therefore, were concrete and straightforward. First – what was the ratio of M.P. Sharma and Kharak Singh? And secondly, were subsequent cases affirming the fundamental right to privacy correct or not? I will consider each in turn, because the answer to the second depends upon the answer to the first.

M.P. Sharma and Kharak Singh

In paragraph 17 of M.P. Sharma, an eight-judge bench of the Supreme Court observed that:

“When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

It was this observation that was at the heart of the State’s case that M.P. Sharma held against a right to privacy. However, to understand what, precisely, this observation means, it is important to read the case in its context. In M.P. Sharma, the question before the Supreme Court was with respect to the legality of search warrants pertaining to the documents and properties of a company accused of embezzlement of funds. One of the grounds of challenge was that the search warrants violated Article 20(3) of the Constitution (the guarantee against self-incrimination). It was in this background framework that the Court made the above observation, which reads, in full:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

The Court made this observation because, as it recorded in paragraph 3 of the judgment, the Petitioner in the case had argued that the prohibition of searches and seizures was “necessarily implied… by certain canons of liberal construction which are applicable to the interpretation of constitutional guarantees. In support of this line of argument, great reliance has been placed upon American decisions in which similar questions were canvassed.”

In particular, the Petitioner had argued that search and seizure of documents amounted to “compelled production”, which violated Article 20(3). To substantiate this analogy, he relied upon decisions of the US Supreme Court interpreting the Fourth Amendment of the US Constitution, which states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In M.P. Sharma, the Court rejected this argument on the ground that “there is no basis in Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same.” (paragraph 17) And it was in the same paragraph that it made the only observations about the right to privacy that are present in this case.

A holistic reading of P. Sharma, therefore, reveals the following:

1. The holding of the case is that a search or a seizure does not amount to “compelled production” and therefore does not in itself violate Article 20(3) of the Constitution.
2. The Court rejects incorporating a right to privacy analogous to the Fourth Amendment into Article 23.
3. M.P. Sharma is silent on the question of whether there might be a right to privacy under other Articles of the Constitution, such as 19(1)(d) or 21.
4. M. P. Sharma is silent on the question of whether there might be a basis for the right to privacy that is not grounded in principles “analogous to the Fourth Amendment”.

In this context, it is important to note that at the time M.P. Sharma was decided, the American approach to the Fourth Amendment was a property-based one (see Akhil Amar, “Fourth Amendment First Principles”, (1994) 107(4) Harvard Law Review 757, 800), and essentially protected persons against unlawful physical trespass from State agents (Olmstead vs United States (1928), upholding a warrantless wiretap on the basis that it did not involve any physical trespass onto a person’s property). However, subsequently, in Katz vs United States (1967), the Supreme Court abandoned the theory of physical trespass, and held that the Fourth Amendment applies to “persons, not places”, and that there existed “zones” in which every person had a “reasonable expectation of privacy.”

However, in a trio of cases – Griswold vs Connecticut (1965), Eisenstadt vs Beard (1972) and Roe vs Wade (1973) – the Supreme Court evolved a constitutional right to privacy that was not grounded in the Fourth Amendment. In Griswold – which was a case about whether outlawing contraception for married couples was constitutional – the Supreme Court held that the right to privacy was a “penumbral right” under the Constitution. A penumbral right was a right that emanated from a textual guarantee in order to give it “life and substance” (p. 484), and therefore was to be considered part of the textual right itself. The Supreme Court drew out the right to privacy from the textual rights to freedom of association (First Amendment), the guarantee against quartering of soldiers in peacetime (Third Amendment), prohibition of unreasonable searches and seizures (Fourth Amendment), the right against self-incrimination (Fifth Amendment), and the residuary rights clause (Ninth Amendment).

The holding in Griswold was subsequently extended to unmarried couples in Eisenstadt vs Baird, and in Roe vs Wade, which was a case about whether outlawing abortion was illegal, the Supreme Court accepted the logic of Griswold. It held that although there was no “explicit right to privacy” (p. 152), it was implicit in the “concept of ordered liberty” (p. 152). In addition to the Amendments already invoked in Griswold, Roe also invoked the Fourteenth Amendment (the “personal liberty” clause).

In Gobind vs State of MP – which, as discussed above, was the first Indian case to hold in favour of a fundamental right to privacy – the three-judge bench of the Supreme Court relied upon Griswold (paragraph 16) and Roe (paragraph 18), inter alia, to hold that there was a fundamental right to privacy under the Indian Constitution, drawn from Articles 19(1)(a) (“freedom of speech”), 19(1)(d) (“freedom of movement”) and 21 (“right to life and personal liberty”) (paragraphs 28 and 32). It is therefore clear that Gobind in no way went against the binding precedent in P. Sharma. This is because:

1. M.P. Sharma only rejected importing principles of the Fourth Amendment into Article 20(3)
2. Gobind was a case that was neither about the Fourth Amendment, nor about Article 20(3)
3. The right to privacy was in Gobind was based not under Article 20(3), but under Articles 19 and 21
4. Gobind relied upon American developments in the law of privacy, but not upon American Fourth Amendment law; rather, it relied upon American law that drew out a right to privacy as a “penumbral right”, which was necessary to make other rights – such as the right to freedom of speech and association – effective.

For this reason, it is clear that Gobind – and the forty years of consistent privacy jurisprudence that have followed it – is not inconsistent with P. Sharma. The “ratio” of M.P. Sharma is that search and seizure of documents does not amount to “compelled testimony” under Article 20(3). The ratio of Gobind is that there exists a fundamental right to privacy under Articles 19(1)(a), (d), and 21.

The second case – Kharak Singh vs State of UP – also does not stand in the way. Kharak Singh  was a case involving police surveillance of a “history-sheeter”. Various forms of surveillance – with the exception of “domiciliary visits” were upheld as consistent with the fundamental right to freedom of movement, with the Court remarking at one point that it was not necessary to consider Article 21, since there was no equivalent in India to the American right to privacy.

Kharak Singh was decided by a bench of six judges. In Maneka Gandhi vs Union of India, (1978), a bench of seven judges expressly held that in view of the judgment of the bench of eleven judges in R.C. Cooper vs Union of India (1970) the majority in Kharak Singh stood overruled. Kharak Singh, therefore, was no longer good law after R.C. Cooper. Gobind – and all the cases that followed – were decided after R.C. Cooper, and were therefore not contrary to Kharak Singh.

In fact, Kharak Singh was specifically overruled on a relevant point: in Kharak Singh, the Court followed the approach to interpreting Part III of the Constitution outlined in A. K. Gopalan vs State of Madras (1950) where each individual right in the Constitution was deemed to deal with specific subject matter, to the exclusion of all other rights. It was in this context that the Court held, in Kharak Singh, that after the constitutionality of the police surveillance rules at issue had been considered under Article 19(1)(d), there was no need to consider Article 21, noting that: “the right to 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.”

It was this exact approach – whereby an impugned law could be analysed under only one constitutional provision – that was rejected by Maneka Gandhi relying upon R. C. Cooper. Consequently, Kharak Singh does not stand in the way of a definitive finding that there exists a fundamental right to privacy under the Indian Constitution.

The Correctness of Gobind and Subsequent Cases

With the shadow of M.P. Sharma and Kharak Singh having been removed, Gobind – and the forty years of consistent privacy jurisprudence that followed it – need only be considered on their own merits. This needs only a brief analysis. We may begin by noting that the absence of a specific textual guarantee is no bar to a finding that a fundamental right exists. Rather,  the right to privacy exists because – as held in Gobind – it is an essential element of Articles 19(1)(a), (d) and 21 of the Constitution. There is extensive literature by now (both judicial and scholarly), demonstrating that the freedom of speech, of movement, and the right to personal liberty would be rendered illusory if there was no accompanying guarantee of privacy (consider, for example, the American judgment of NAACP vs Alabama, where the Supreme Court held that compulsory disclosure of membership lists of a politically unpopular oganisation would stifle the freedom of association).

In this context, it is important to note that the two Constitutions from which the framers of the Indian Constitution borrowed most heavily – the American and the Irish – also did not have a guaranteed right to privacy. In both these jurisdictions, the right to privacy has been read into the Constitution by the judiciary. We have already examined the United States; and in McGee vs Attorney-General [1974], the Supreme Court of Ireland read in a right to privacy as part of the guarantee of “personal rights” under Article 40(3)(1) of the Irish Constitution. The logic of both the Supreme Court of the United States and the Supreme Court of Ireland was that textually guaranteed rights would be ineffective and without force were it not for an accompanying right to privacy. And this was precisely the logic employed by the Supreme Court in Gobind vs State of MP.

There is, therefore, no strong reason for the Supreme Court, in 2017, to turn the clock back and hold that all its judgments, starting with Gobind in 1975, were incorrectly decided, insofar as they held that there exists a fundamental right to privacy under the Constitution.

The Referral Questions

Let us come back to the two referral questions. As I noted at the beginning of this essay, the two questions were concrete and straightforward. After the discussion above, I submit further that they can be answered in an equally straightforward manner.

Answer 1: M.P. Sharma and Kharak Singh do not hold that there is no right to privacy under the Indian Constitution, and to the extent that they do, they are incorrect and deserved to be overruled.

Answer 2: The judgments of this Court, starting with Gobind vs State of MP, supra, and afterwards, which, for the last four decades, have been developing the law of privacy on a case by case basis are correctly decided, and good law.

All other issues – “definitions” of privacy, limitations on the right to privacy, the philosophical basis of privacy, privacy applied to horizontal relations, data protection – are simply irrelevant to the case. A particularly curious aspect of these hearings has been a general impression that the Court is considering these issues for the first time in its history, and is required to hand down a comprehensive judgment settling all possible issues. However, as the referral order was aware, that is not the case. The referral order consciously did not ask the Court to rule in the abstract about whether there existed a fundamental right to privacy, and if so, how it was to be defined, limited and understood (as I have suggested above, such an enterprise, in the abstract, is exceedingly perilous). What the referral order did ask the Court to do was to examine the ratio of one set of cases, and examine the correctness of another set. These two questions can – and should – be answered through a brief, three-paragraph order; everything else should be left to smaller benches of the Court to develop, with the benefit of concrete cases before it.

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(Disclaimer: I assisted Mr Arvind Datar, one of the senior counsel representing the Petitioners.)

ICLP Turns Four :: Some Thoughts on the Office of the Chief Justice and Other Supreme Court Miscellany

The Indian Constitutional Law and Philosophy blog turns four years old today. The last four years have been fairly turbulent: there have been important two-judge bench decisions on diverse facets of civil rights (freedom of speech and expression, equality and the right to vote, homosexuality, and many more); Constitution bench judgments on the judges appointments’ and the basic structure, the freedom of trade, and on the death penalty; seven-judge bench decisions that have upended the jurisprudence on ordinances and have reaffirmed the jurisprudence on electoral speech; a nine-judge bench decision on inter-state taxation (with another nine-judge bench decision on privacy due by the end of the month); a lot of Article 142; and some interesting contributions from the High Courts. On this blog, the attempt has been – and always will be – to analyse, discuss and criticise our courts’ constitutional jurisprudence in a straightforward, forthright and adversarial manner, and with as little technical jargon as possible. The idea is both to hold our justices to account, and to create a forum for open and public discussion about the Constitution.

I have used previous blog anniversaries to discuss issues at the interface of constitutional practice and scholarship in India (for example, the need for doctrinal engagement and problems of access). My concerns arise from my own position at this interface: for three out of four years of the blog’s existence, I have been a practicing lawyer in Delhi, in different forums. From November 2016, I have been at the Supreme Court, and have had a degree of exposure to some of its inner workings.

It is from that perspective that I want to highlight two issues today, which need greater scholarly and public scrutiny than they otherwise get. The first is the Office of the Chief Justice. Although it is rarely discussed, the position of the Chief Justice is one that has tremendous power, and that power flows from two things: The CJI’s discretion in “listing” cases, and the CJI’s discretion in constituting the roster of the Supreme Court.

Let’s take the second issue first. For the most part, the Supreme Court sits in benches of two judges (at present, there are thirteen functioning courtrooms in the Supreme Court – thirteen benches). In most of these benches, the senior judge is rarely crossed by his junior colleague, so effectively, these are one-judge benches. Judges have their individual proclivities when it comes to almost all areas of law: one judge might tend to be pro-labour, another judge might always vote to uphold the death penalty, a third judge might be very skeptical about claims brought to court by big builders. It therefore matters tremendously how the roster is arranged. Readers will recall, for example, that period in the mid-2000s where Justices Sinha and Pasayat were virtually writing duelling judgments on the death penalty – Justice Sinha would commute, Justice Pasayat would affirm; a convict’s fate, often, would depend upon whether his case went up before the former or the latter. Consequently, how the Chief Justice arranges the roster – and what kinds of matters go before which bench – needs to be scrutinised in detail. There needs to be far greater detail paid to judges’ ideological predilections over the course of their judicial career, and how that maps on to the kinds of cases they are assigned to here.

This issue acquires even greater significance in constitutional issues, where larger benches sit. It is the Chief Justice who decides the composition of five-judge, seven-judge or nine-judge benches; it is he who picks, out of the nearly thirty-odd judges on the Court (at any given time), which five, or seven, or nine, will be sitting on a bench. Again, as an institutional issue, this gives whoever occupies the position of the Chief Justice tremendous power to influence the outcome of a decision simply through the act of picking a bench. I am not alleging bad faith, or even saying that this is a bad thing (although, in my view, the fairest outcome would be through a draw of lots); however, once again, it needs to be scrutinised. Who has the Chief Justice picked to hear an important constitutional case about civil liberties? What is the prior record of these judges on the point? Do they have any experience adjudicating such cases before? And so on.

The second power of the Chief Justice is the power to list cases. By now, everyone knows about the huge problems of backlog that are faced by the Supreme Court (and all other courts). This entails a massive queue for cases to be heard: if “leave” is granted in a particular case (see below), it will likely come up for hearing five or six years later. The queue, however, can be broken through an oral “mentioning” before the Chief Justice: at 10 30 in the morning, before hearings start, lawyers line up in Court No. 1 to “mention” a matter before the CJI; in many cases, the “mentioning” is a request for an “early listing”, because of some urgency. The CJI has absolute discretion to allow or deny a mentioning request for an early hearing, just as he has an absolute discretion in deciding when larger benches are to assemble (along with their composition).

The issue, of course, is that certain cases are simply more urgent than others (it’s also important to recall that when it was established, the Supreme Court was primarily expected to function as a constitutional court; constitutional cases now occupy a negligible part of its docket). Through the course of the last year, I’ve chronicled, in particular, the career of two cases where time has been of particular essence (Aadhaar, and the Delhi Govt vs Union of India case). There are cases which, if not heard in good time, effectively entail that one sides wins and the other side loses (The Delhi Govt vs Union of India case is a classic example of this). In such a situation, the CJI’s decision to accept or reject a mentioning request for an early hearing is no longer innocuous: inevitably, it acquires a political dimension. Consequently, it is important to scrutinise what kinds of cases that CJI allows for an early hearing, and what kinds of cases he does not, because the ramifications of delay in our system effectively, at times, amount to deciding a case in favour of one side without ever having a hearing. “Absolute discretion”, therefore, is not good enough.

The issue of how delays end up affecting the outcome of a case brings me to the second point I want to write about: granting leave and interim orders. Let me explain the meaning of “granting leave”. When the Supreme Court was established, one of its functions was to hear appeals from High Court decisions. Not all appeals, however, but only those where there was a substantial and important question of law, or where different High Courts were in disagreement – in short, cases that deserved to be heard by the highest, constitutional court. In most cases, the High Court, when deciding such a case, would issue a “certificate of leave to appeal” to the Supreme Court; i.e., the High Court would itself say that there was an important question of law involved, which the Supreme Court should resolve (if you read some of the old SC cases from the 1950s, you can still see this in the opening line of the judgment). If the High Court did not say so, however, the losing party before the High Court could still petition the Supreme Court for “special leave to appeal” – i.e., convince the Supreme Court that the High Court was mistaken in refusing to grant a certificate of appeal. “SLPs” were supposed to be allowed only in exceptional circumstances (and that is still the position in the UK’s judicial structure). When the Court did allow the SLP, it “granted leave” to appeal. The SLP (Special Leave Petition) was then “admitted”, and became an “appeal”, which would be heard by the SC as such.

As has been chronicled extensively, the SC’s SLP jurisdiction has now snowballed into monstrous proportions (the SC sets apart two days out of the five day week – Monday and Friday – just to hear SLPs). More importantly, however, the SC now disposes off SLPs in two ways: on the first date, it may “issue notice” to the other side, then hear the SLP as an SLP on a fixed date, and dispose it off. Or it may “grant leave” (in the traditional sense); in such a situation, the SLP is converted into an appeal, and it then goes into the five-or-six-year-long queue of appeals. Consequently, in practice, if a bench “grants leave” in a case, it is parking away the case for a few years.

Consequently, the decision to grant leave assumes tremendous consequence, because if the case is not going to be heard for a few years, then during that time, the High Court judgment will continue to hold the field (unless the SC grants a stay); as discussed above, in many cases, this effectively amounts to deciding in favour of whoever is in a better position at the time the case came to Court. However, this position would be reversed entirely if a stay was granted. The High Court’s judgment would cease to operate until the SC decided the case, and the winner in the High Court would suddenly become the loser.

There are two recent examples of this in the domain of constitutional law. In the middle of 2016, the High Court of Patna struck down the State of Bihar’s prohibition law in an extensive and closely-reasoned judgment (the judgment was covered on this blog). The case came before the Supreme Court, where it was promptly stayed (it is reported that Justice Dipak Misra observed that “liquor and fundamental rights cannot go together” while staying the judgment). I have not been able to track down what happened to the case, but there is something particularly troublesome about a detailed, constitutional judgment of the High Court, which was argued at length before that forum, being effectively rendered a nullity in a two-minute hearing at the SC. The other example is what the Supreme Court did with a Gujarat High Court judgment, which had held that denial of tex exemption to a film about homosexuality was discriminatory. On appeal, the SC granted leave and stayed the High Court judgment, meaning that the film lost its tax exemption. As the Indian Express correctly noted at the time, the SC effectively “shelved” the film.

What these cases show us is that “granting leave” and “interim stay” – two legal mechanisms that are supposed to be uncontroversial issues of procedure – are now substantive issues: because of the massive backlog and years-long queue at the SC, these “procedural” decisions often effectively decide peoples’ rights. And this happens without a full hearing or a reasoned judgment (there exists a detailed jurisprudence dealing with when interim stays should be granted, but in my time at the SC, I have rarely – if ever – seen judges invoke it).

My point, therefore, is this: as an institution, the Supreme Court cannot be effectively studied as you would study other constitutional courts: through a close reading of decided cases, legal doctrine, and transcripts of written and oral arguments (recall that transcripts aren’t even available for our Supreme Court). The Indian Supreme Court has to be studied through the actions of the Chief Justice in listing and refusing to list, through the actions of the Chief Justice in constituting benches, through the movement or non-movement of the queue of pending cases, and through judges’ one-line orders granting leave and staying, or refusing to do so.

And this leads to a strange situation: if you’re a traditional legal scholar, working at a university, you will simply be unable to do this. You have to be in Court and a witness to things actually happening to even know what is going on (because much of this is never recorded in the final orders). On the other hand, if you’re in Court every day from 10 30 to 4, a as a practicing lawyer, where will you ever have the time to write high quality legal scholarship?

If there is an answer, I haven’t found it yet.