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.

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



Filed under Privacy

4 responses to “The Right to Privacy Hearing: Problems and Prospects

  1. Concerned Citizen

    Many thanks for this. There may be a small type in the itemised list following “A holistic reading of P. Sharma…”: perhaps by “Article 23” in point 2 you meant Article 20(3) instead?

  2. Pingback: The Right to Privacy Hearing: Problems and Prospects | Live Law

  3. The post above refers to the ‘main’ ground of challenge to the Aadhaar scheme as that involving concerns around the right to privacy. The 9 Judge Bench heard arguments about the existence and status of the right to privacy in the Indian legal system.

    Gautam Bhatia urges the Court to issue a judgment confined strictly to the legal principles involved in the abstract and to not limit the scope and meaning of the right without a specific fact situation at hand.

    Yet the 9 Judge Bench heard some arguments based upon the Aadhaar scheme and we can be certain that the Aadhaar scheme will find mention or discussion in the 9 Judge ruling on the right to privacy.

    It is my opinion that the challenge to Aadhaar is being framed too narrowly around privacy and there are other more serious concerns about Aadhaar and facts about the Aadhaar biometric identification system that have not been placed before the Supreme Court or are being sidelined by the focus on the privacy right. These are concerns that Aadhaar in its very design and implementation more fundamentally violates the right to identity, to person-hood, to citizenship and consequently the right to life itself. The security concerns are also extremely important and are being overlooked.

    I had posted three comments here in the above context, which Gautam Bhatia deleted on the ground that they were off-topic.

    So let me make the topical relevance clear. Surely discussion about the adequacy of the framing of a legal challenge is relevant to the discussion about how the Court might respond to the arguments before it on a particular framing of an issue.

    There is an LSE report on the aborted UK biometric identity project that sets out several concerns, some of which fall within the privacy concept and others which don’t. See

    It is also my view that by centering the Aadhaar challenge around privacy, the Aadhaar legal challenge might really be getting sabotaged and is being mishandled.

    I do think my remarks are topical as I question the very focus of the 9 Judge Bench which emanates out of the Aadhaar petitions and which will be used by a smaller Bench to eventually decide the Aadhaar cases.

    The problem with the Aadhaar hearings appears to be that the hearings are taking place without a complete narrative of all relevant facts around Aadhaar. It is the facts that help a Court determine the legal issues at hand. It is my position that the legal issues around Aadhaar are not adequately enumerated before the Court. And that the high-profile privacy hearings have become a red herring or a smokescreen.

    We can all predict where the privacy hearings will go. The Court will hold that it is a fundamental right subject to restrictions. The 9 Judge Bench will certainly venture to discuss what these restrictions might be as well as what the right to privacy itself may include.

    The impact of this ruling on the Aadhaar petitions will depend upon whether or not the Court subsequently finds that Aadhaar either does or does not infringe the privacy right or does so within permissible limitations. The Court will direct the Government to ensure that the data base is secure and that data protection laws are framed and that privacy rights are protected. But Aadhaar will stay.

    But in this focus on privacy by the constitution of the 9 Judge Bench, the real concerns about Aadhaar will not be heard. These have not been highlighted until now in the hearings. For instance, why has the Supreme Court not been told that the digital biometric database of 1 billion Indians cannot never be secure and that we the citizens have no idea who stores, secures, accesses or backs up this data. Many of the Aadhaar related concerns which will end up being discussed as privacy concerns are really concerns about the right to identity, to person-hood, to citizenship, to a secure identity, to recognition by the State. These need to be addressed by attacking the Aadhaar system as a concept. The Right to Privacy will not help to make these points.

    Hope this post is allowed to stay in the interest of open and honest debate.

  4. My thoughts on the right to privacy

    The right to privacy is a universal, inherent, inviolable and natural human right also recognized as such by international law. It is inherent in the very concept of a right to life and liberty and is part of Article 21.

    Human beings are independent and self-autonomous. A human being has the right to live his life according to the individuals’ desires, needs and wants. An individual has the right to choose the kind of life he wants. The right to free speech and the right to freedom of conscience also point to the inviolability of an individual’s right to choose.

    Now of course, the State can restrict all rights of man but in democratic, liberal societies which are based upon respect for fundamental human rights, the State can trample upon fundamental rights only to serve reasonable purposes and objectives of public interest and constitutional governance and must do so in the least restrictive and most reasonable way possible.
    Humans have the right to live their own lives without intrusion or interference or restriction by the State unless such restrictions emanate from reasonable laws that serve moral and necessary public and governance objectives. Humans also have the right to their own spaces, whether it be personal, social, family, work, recreation, spiritual or in any other aspect of human life. This is the right to privacy. The right to be let alone. The right against unwelcome forceful intrusion.

    Humans in civilized and right based societies can also expect that the State will protect them from malicious and harmful interference, obstruction and intrusion by other individuals. Thus, the State makes laws to protect a person’s body, property, home, reputation, etc. The State must also enact laws to protect a person’s right to privacy.

    Obviously, the right to privacy is dependent upon spaces where the right can be enforced and where it cannot. A person can expect privacy in his home, his office, his private communications, record-keeping, etc. But a person cannot undress on a highway and then claim that passersby violated his privacy by seeing him naked.

    The right to privacy has no limit just like the right to life. The State cannot dictate to a man how a man should live his life, if the man breaks no law. The State also has no right to tell a man how private or public he should be in his actions. The State can intrude on a person’s privacy only under very strict conditions, for valid and constitutional public interest objectives, for reasonable governance objectives, and by laws made by Parliament which are fair, reasonable and least restrictive.

    Privacy is a stand-alone right. It is also a part of the right to life and the right to liberty. And it is a part of all other fundamental rights. I have the right to privacy in the way I practice my religion. I have the right to privacy about what I read, write, think, say, or do until I decide to make it public. The State cannot intrude unless the strict conditions that justify State intrusion exist.

    The Supreme Court will need to spell out in the abstract the conditions which could justify State invasion into a persons’ privacy. These conditions should be at least as stringent as those prescribed in Article 19(2), maybe more.

    But the contours of the right and its meaning can only be fleshed out on a case-by-case basis.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s