Judicial Evasion, Book Bans, and the Unreasoned Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Time will tell.

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

The Puttaswamy case came to Court because the Indian Constitution does not have a textually guaranteed right to privacy. Each of the six judgments spent considerable time establishing why, despite the constitutional text, privacy was a fundamental right. Many different arguments were advanced, and in the first two posts in the series, we discussed one of them: privacy was a fundamental right because without it, effective enjoyment of textually guaranteed rights such as the freedom of speech, the freedom of association, personal liberty, and so on, was simply impossible. Consequently, as paragraph 3 of the operative order stated, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” 

Living Constitutionalism

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

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

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

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

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

In the same footnote, he then pointed out:

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

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

Natural Law

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

In a full section dedicated to this argument (Section G), Chandrachud J, writing for the plurality, observed that “privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality. The human element in life is impossible to conceive without the existence of natural rights.” (para 40)

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

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

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

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

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

He then went on to observe that:

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

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

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

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

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

Conclusion 

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

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

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

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

The Right to Information Act 

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

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

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

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

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

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

Conclusion

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

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

 

The Supreme Court’s Right to Privacy Judgment – VII: Privacy and the Freedom of Speech

Last week, in a series of six essay, we discussed various aspects of what the Supreme Court did in Justice Puttaswamy vs Union of India. The Court held that there existed a fundamental right to privacy (essays I and II), that its elements were the bodily and mental privacy, informational self-determination, and decisional autonomy (essays III, IV, and V), and it also indicated the broad standards for limiting the right (essay VI). It is equally important, however, to discuss what the Court did not do. The Court did not hold that there existed a fundamental right to privacy horizontally (that is, between private parties), and the Court did not decide how it would adjudicate cases where there was a clash between privacy and other rights, such as the freedom of speech and the freedom of information.

Clarity on this point is important, because privacy has two uses: it can be used as a shield against intrusive State conduct (such as surveillance, data mining, or criminalisation of personal choices); and it can also be used as a sword against other individual rights. Examples of this include public figures citing privacy to block (potentially critical) books or films, and public information officers citing privacy to deny right to information requests. Over the course of the next couple of posts, I will show that the judgment in Puttaswamy was concerned only with privacy as a shield, and not with privacy as a sword. For the latter, there exists an evolving jurisprudence that remains untouched by Puttaswamy.

Privacy as a Horizontal Right

To start with, it is important to remember that the right to privacy has long been recognised as a “common law right” (in fact, the Union of India’s argued that privacy should remain only a common law right). As such, it was being applied between private parties, as an aspect of tort law, long before the issues in Puttaswamy became salient. On the other hand, the central question in Puttaswamy was whether privacy is a fundamental right under the Indian Constitution. This the judges answered in the affirmative.

It should therefore be clear that the very framing of the question precluded the Court from going into the specifics of privacy as a horizontal right, between private parties. The Court was precluded by the language of the fundamental rights chapter itself: apart from certain specific exceptions (such as Articles 15(2) and 17), the fundamental rights chapter operates vertically, regulating the relationship between the individual and the State. There is little doubt that the provisions within which the Court ultimately located the right to privacy (Articles 14, 19, 20(3), 21, 25) operate against the State. The separate opinions’ formulation of the limitations upon privacy were also directed at the State (the most important requirement that all the judges highlighted was the existence of a “law”). Consequently, Puttaswamy was simply not dealing with issues such as unauthorised biopics (freedom of expression v privacy), or right to information requests.

There is a limited exception to this: the Court has often held (most recently in the liquor ban cases) that Article 21 does not merely prohibit the State from taking away an individual’s life or personal liberty without due process, but often requires the State to act affirmatively and protect life and personal liberty. We find this issue discussed in the plurality opinion of Justice Chandrachud and the separate opinion of Justice Kaul, in the limited context of data protection. Both Justice Chandrachud and Justice Kaul argued that the issue of data collection and data mining was an extremely complex one, and individual’s rights could only be protected by a detailed data protection law, enacted by Parliament. Notably, the Justices made it clear that the obligation was Parliament’s alone.

There is an important distinction, however, between the Court stating that Parliament had an obligation to pass a law under Article 21 that adequately protected individual rights to informational self-determination (which it did), and the Court holding that individuals could invoke the Constitution in private disputes against private parties to vindicate their privacy rights (which it did not) (although, in the context of privacy, the Court has been rather unclear about this distinction, and created messy jurisprudence as a result). In fact, the Court could not have done the latter, not only because it was entirely outside the scope of the referral questions, but also because that would amount to rewriting the Constitution.

Privacy and Free Speech

However, in the view of some scholars, there exist various observations in Justice Kaul’s separate opinion, which might undermine this position – and specifically, subordinate free speech to privacy. To start with, let us remember that Justice Kaul’s is a separate opinion which did not, by itself, carry a Majority of the Court. More importantly however, in my view, Justice Kaul did not, at any point, endorse the view that privacy qua a fundamental, constitutionally guaranteed right, can be applied horizontally. In paragraph 12, he observed that privacy may be claimed against State and non-State actors, and in the latter case, there may be need for legislative regulation. He specifically addressed the issue of privacy claims against non-State actors (paragraphs 15 – 22), which was focused exclusively on data mining and data collection by corporate giants.

It was at a much later point in the judgment, while dealing with privacy as the right to informational self-determination, he observed:

“An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives – people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments…  which celebrity has had sexual relationships with whom might be of interest to the public but has no element of public interest and may therefore be a breach of privacy.” (paragraphs 56 and 57)

And:

“Every individual should have a right to be able to exercise control over his/her own life and image as portrayed to the world and to control commercial use of his/her identity. This also means that an individual may be permitted to prevent others from using his image, name and other aspects of his/her personal life and identity for commercial purposes without his/her consent.” (paragraphs 58)

While these paragraphs have caused some disquiet, when read objectively, they lay down two entirely innocuous propositions, that are accepted in jurisdictions across the world. The first proposition is that private life cannot be invaded unless there is an element of public interest involved. The second proposition is that private life cannot be commercialised without consent. Notice that, judicially interpreted, neither of these propositions will stifle (to take, once more, the central example) biopics, documentaries, or biographies of public figures: as Justice Kaul made clear through his celebrity-sexual relationship example, the primary factor in determining whether there has been an actionable breach of privacy is whether there is an element of public interest involved in the disclosure of what is claimed to be “private information.” This is an accepted standard in, for example, the ECHR, as well as in South Africa. To get a taste of how it might work in practice: South African courts have held that publishing compromising photographs of a pair of well-known lawyers was a breach of privacy, because although the lawyers were indeed “public figures”, there was no “public interest” in broadcasting to the world what they did in their private lives. On the other hand, when a minister who was undergoing rehabilitation therapy went on a binge, knowledge of that fact was held to be in the public interest, because the public was certainly entitled to know and judge for themselves whether such conduct from a public servant was responsible or not.

What this shows us is that it is the task of the Courts to fashion a jurisprudence that balances privacy rights, public interest, and the right to freedom of expression (as multiple other Courts are doing, and have done). This would require courts to define ambiguous phrases such as “public interest” and “commercialisation”, with a view to the larger issues involved. Puttaswamy does not decide the questions, or even indicate how that balance may be achieved: it wisely leaves that determination to future courts.

Puttaswamy also has nothing to say about another vexed issue, that has caused a split in various High Courts over the last two decades, ever since the judgment of the Supreme Court in R. Rajagopal vs State of Tamil Nadu: the question of whether a privacy claim can be used to injunct a book or a film, and stop it from entering the public sphere; or whether the only remedy for a breach of privacy is monetary compensation, after publication. In Khushwant Singh vs Maneka Gandhi – a judgment authored by Kaul J himself, when he was a judge of the Delhi High Court, it was clearly held that because privacy disputes between two individuals took the form of tort claims, and not constitutional claims, an injunction could not be granted:

“The interim order granted by the learned Single Judge is a pre-publication injunction. The contents of subject matter had been reported before and the author stands by the same. In view of this we are of the considered view that the respondent cannot make a grievance so as to prevent the publication itself when the remedy is available to her by way of damages.“

The Court then noted:

“An important aspect to be examined is the claim of right of privacy advanced by the learned counsel for the respondent to seek the preventive injunction.This aspect was exhaustively dealt with in the case of Auto Shankar reported as R.Rajagopal’s case (supra) . The Supreme Court while considering these aspects clearly opined that there were two aspects of the right of privacy. The first aspect was the general law of privacy which afforded tortuous action for damages from unlawful invasion of privacy. In the present case we are not concerned with the same as the suit for damages is yet to be tried. The second aspect, as per the Supreme Court, was the constitutional recognition given to the right or privacy which protects personal privacy against unlawful governmental action. This also is not the situation in the present case as we are concerned with the inter se rights of the two citizens and not a governmental action. It was in the context of the first aspect that the Supreme Court had given the illustration of the life story written – whether laudatory or otherwise and published without the consent of the person concerned. The learned counsel for the respondent Mr. Raj Panjwani, sought to draw strength from this aspect i.e., the lack of consent of the respondent to publish her life story in the autobiography written by appellant no.1. However, this will give rise to tortuous action for damages as per the Supreme Court since this is the aspect which is concerned with the first aspect dealt with by the Supreme Court in respect of the invasion of privacy.”

And then:

“The remedy would thus be by way of damages and not an order of restraint.”

On the other hand, the Madras High Court did injunct the publication of a biography of Jayalalithaa on privacy grounds, also relying upon certain ambiguous formulations in R. Rajagopal vs State of Tamil Nadu. At the present moment, therefore, there exists a split in the jurisprudence on this point. It would take us too far afield to commence a discussion on why the Delhi High Court was right, and the Madras High Court wrong (I have dealt with the issue in some detail in Chapter Eight of my book, Offend, Shock, or Disturb: Free Speech under the Indian Constitution); the limited purpose of this post is to reiterate that in Puttaswamy, the Supreme Court was concerned with identifying and locating privacy as a fundamental right within the Constitution. This leaves entirely open the questions pertaining to balancing privacy and free speech when these interests clash with each other in a private setting. That jurisprudence will need to be evolved on an incremental basis, through litigation in the High Courts (or the Supreme Court), and hopefully in a progressive direction.

 

The Supreme Court’s Right to Privacy Judgment – VI: Limitations

In the first two posts in this series, we discussed the conceptual foundations of the Supreme Court’s right to privacy judgment. In the next three posts, we discussed the Court’s treatment of the three prongs of privacy identified by it: bodily and mental privacy, informational self-determination, and decisional autonomy. This brings us to the next aspect of the judgment: the Court’s articulation of limitations upon the right to privacy.

At the bar, it was common cause between the Petitioners and the Respondents that the right to privacy was not an “absolute right.” In that event, what kinds of limitations was the State permitted to impose upon the exercise of the right to privacy? The Court had two options before it. One was to simply affirm the forty years of existing jurisprudence before it, through the course of which various benches had articulated the scope of privacy restrictions, in the context of concrete cases. The other was to articulate a separate set of standards within the judgment itself. As we shall see, the Court did both. It not only affirmed existing case law, but it also – through a majority – clarified and streamlined the standards that the State must meet in order to justify privacy violations.

The Operative Order and Prior Case Law

Let us go back (yet again) to the operative order, the single most important part of the judgment. Paragraph 3 of the Order states that “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.” Paragraph 4 continues: “Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.”

There are two issues to consider. The first is the Court’s separate acknowledgment that privacy is part of Article 21 and a part of the freedoms guaranteed by Part III of the Constitution. This is extremely important. Given that Article 21 is itself “part of the freedoms guaranteed by Part III”, why did the Court single it out as an independent repository for the right to privacy, dealing with it independently of the rest of Part III? The answer is to be found in Paragraph 4 of the operative order, where the Court affirms all its privacy judgments subsequent to Kharak Singh. As I shall go on to show, while there is no difficulty when it comes to limitations on facets of privacy that are found in other Articles of Part III, when it comes to Article 21, the Court, recognising the importance of the right to privacy as a facet of life and personal liberty, has historically insisted on a more rigorous standard than is generally used for other rights that fall within Article 21. Paragraphs 3 and 4 of the Operative Order, read together, preserve both the Court’s limitations jurisprudence that it has developed for fundamental rights such as Articles 14, 19, and 25 (which cover facets of privacy), as well as the more rigorous jurisprudence that it has specifically developed for privacy under Article 21.

Part III Rights 

Let me explain. On the first issue, Justice Nariman’s opinion provided the clearest exposition. In paragraph 86, he held that:

“… when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed. For example, if the restraint on privacy is over fundamental personal choices that an individual is to make, State action can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under Article 21 read with Article 19(1) (a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or subordinate legislation to pass muster under the said Article. Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster.”

To take a hypothetical example, imagine a case where the State requires compelled disclosure of membership lists of a political organisation on national security or public order grounds (as was the case in the famous American case, NAACP vs Alabama). This is an issue that will be at the intersection of Articles 19(1)(a) (freedom of speech), Article 19(1)(c) (freedom of association), and Article 21. The Court will then be required to apply the standards under Article 19(2) and (4). In particular, it will be required to apply the standard laid down in Arup Bhuyan vs State of Assam, where it was held that in invoking “security of the State” or “public order” to restrict expressive or associative rights, the State must show a very high degree of proximity – an incitement to violence standard – in order to justify its restrictions.

Justice Nariman’s formulation was accepted, in various ways, in the separate opinions authored by the other judges. Justice Kaul concluded his judgment by observing that “let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part.” (para 83) Justice Bobde observed that “once it is established that privacy imbues every constitutional freedom with its efficacy and that it can be located in each of them, it must follow that interference with it by the state must be tested against whichever one or more Part III guarantees whose enjoyment is curtailed. As a result, privacy violations will usually have to answer to tests in addition to the one applicable to Article 21. Such a view would be wholly consistent with R.C. Cooper v. Union of India.” (para 46) Justice Chelameswar held that “the limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them)…  to begin with, the options canvassed for limiting the right to privacy include an Article 14 type reasonableness enquiry; limitation as per the express provisions of Article 19; a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21…” (paras 42 and 43) And Justice Chandrachud, writing the plurality opinion, made the observation that “a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.” (Conclusion H)

This much, therefore, is uncontroversial: to the extent that a privacy claim is grounded in a right other than Article 21 of the Constitution (such as Article 14, or 19(1), or 25), its validity will be tested on the basis of established, existing jurisprudence on the limitations of those rights. Of course, that jurisprudence is itself fluid and evolving, and not free of controversy.

Article 21

This brings us to Article 21. As Justice Bobde correctly pointed out in his opinion, violations under Article 21 have to conform to the “just, fair and reasonable” standard, as laid out in Maneka Gandhi vs Union of India. Where things get murky, however, is that in Gobind vs State of MP – the first privacy judgment of the Supreme Court – the Court laid down a more rigorous variant of this test. In Gobind, the Court held that privacy violations could be justified only if there was a “compelling State interest” at stake, and if the law was narrowly tailored – that is, the State could have to show that there was no other, less privacy-infringing way, through which it could achieve its goals.  The dictum in Gobind was followed in the phone-tapping case – PUCL vs Union of India – where the Court upheld the constitutionality of phone tapping only by passing guidelines that restricted its scope to narrow and targeted surveillance (rather than a dragnet). This was followed in State of Maharashtra vs Bharat Shantilal Shah, another surveillance case. As Justice Chandrachud noted in his analysis of Bharat Shantilal Shah, at para 70:

The safeguards that the Court adverts to in the above extract include Section 14, which requires details of the organized crime that is being committed or is about to be committed, before surveillance could be authorized. The requirements also mandate describing the nature and location of the facilities from which the communication is to be intercepted, the nature of the communication and the identity of the person, if it is known. A statement is also necessary on whether other modes of enquiry or intelligence gathering were tried or had failed or why they reasonably appear to be unlikely to succeed if tried or whether these would be too dangerous or would likely result in the identification of those connected with the operation. The duration of the surveillance is restricted in time and the provision requires “minimal interception.”

This, in essence, is the narrow tailoring standard (for interested readers, I have addressed this issue in detail in a paper, here), which falls within the broad definition of “just, fair, and reasonable” under Article 21, but which – as can be seen – is a rather rigorous variant of that standard that the Court has applied specifically to privacy claims.

It is in this regard that we see something of a split in the Puttaswamy verdict. Justice Bobde, for example, read the “just, fair, and reasonable” standard under Article 21 as requiring only a showing by the State that its law was “rational”:

“Under Article 21, the standard test at present is the rationality review expressed in Maneka Gandhi’s case. This requires that any procedure by which the state interferes with an Article 21 right to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.” (para 45)

A simply showing of rationality, however, is much less rigorous than the compelling state interest-narrow tailoring standard. No other judge, however, agreed with this formulation. Justice Sapre provided his own articulation, laying down a standard of “social, moral and compelling public interest in accordance with law.” (para 33) Justice Nariman did not articulate any separate standard under Article 21. It was Justice Chelameswar, however, who most clearly recognised the distinction between a standard “just, fair, and reasonable” test, and the “compelling State interest” test – which he called “the highest standard of scrutiny that a Court can adopt.” (para 43) He noted that:

“The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.64 Gobind resorted to the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the United States where the terminology of ‘compelling state interest’ originated, a strict standard of scrutiny comprises two things- a ‘compelling state interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases.” (para 45)

According to Justice Chelameswar, therefore, privacy claims themselves were of two kinds: ordinary claims, which would be tested under a “just, fair and reasonable” standard, and more important claims, which deserved the “compelling State interest-narrow tailoring” standard. However, even this formulation was unable to carry a majority.

Proportionality under Article 21

This brings us to Justice Chandrachud’s plurality, which had the support of four judges. In paragraph 168 of his judgment, Justice Chandrachud laid out three requirements that the State must meet to justify: the existence of a “law”, a “legitimate State interest”, and – most importantly – the requirement of “proportionality”:

“Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”

The proportionality standard is used primarily in European and in international human rights jurisprudence, apart from being applied by Courts in Canada, South Africa and elsewhere. In Andrews vs Law Society of British Columbia, the Canadian Supreme Court articulated the meaning of proportionality as follows:

“The proportionality requirement, in turn, normally has three aspects:  the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.”

Readers will note that this proportionality standard – which, broadly (and with a few variants) is applied across the world – itself contains a statement of narrow tailoring (the second prong).

Now, the plurality muddied waters a little bit in Conclusion H, where Justice Chandrachud made the following observation:

“An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.” 

While a superficial reading of this paragraph may suggest a retreat to the “rationality” standard under Article 21, it is not so. First, the proportionality standard is itself three-pronged, and rationality is only its first prong. Secondly, the Supreme Court has applied the proportionality standards in other judgments, where it has fleshed out more fully the multiple aspects of what proportionality means. Thirdly – and most importantly – the standard was articulated with clarity in Justice Kaul’s judgment which – combined with the plurality – gives us a majority. Justice Kaul held that:

“The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: “(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.” (para 70)

This articulates, in more express terms, the test suggested by the plurality. It is a well-settled position of law that when a Court is “split” on a particular point, the separate opinion that makes a plurality a majority becomes the “controlling opinion” on that point. This is not to suggest that there is any difference between the plurality and Justice Kaul’s opinion – because, as I have argued above, Justice Kaul only spelt out in more express terms the standard that Justice Chandrachud laid out. What this does ensure, however, is that any confusion generated by Justice Chandrachud’s use of “rational nexus”, without adverting to the other aspects of the proportionality standard, is dispelled.

The conclusion, therefore, is this. As per a majority in Puttaswamy, privacy infringements under Article 21 must satisfy the proportionality standard – a familiar standard of review that is used across the world to check State infringement of individual rights. While the requirements of a “law”, a “legitimate purpose”, and “procedural guarantees against abuse” are straightforward enough, the real bite of the proportionality standard lies in the requirement that the law be “necessary in a democratic society”, and be proportionate. This places an affirmative burden upon the State not only to demonstrate a rational connection between the law and its goals, but also to show that the law minimally infringes rights. Or, to put it another way, if the Petitioners can show that the State can achieve its goals without infringing upon privacy to the extent that it is doing, the State’s law must fall. Note, of course, that under this standard, the burden is not upon the Petitioners – once an infringement of privacy is shown, it is for the State to demonstrate necessity and proportionality. And this standard – as we have seen – is not based upon judicial deference, but upon rigorous judicial review. The Court might defer to an extent when it comes to the question of whether the State’s purpose is legitimate or not – however, while assessing proportionality, the State must be held to high standards, with the Court requiring demonstrable and genuine evidence to back up its claims that is measures are necessary and proportionate.

In my view, therefore, Justice Kaul’s four-factor test – which is a clarification and a clearer articulation of the plurality’s proportionality standard – is now the law of the land when it comes to assessing the constitutionality of privacy violations. It is a powerful and effective test, which achieves the correct balance between individual rights and the State’s interest. What remains to be seen is how the Court will now apply the test in the concrete constitutional challenges that shall soon be before it.