(This is a guest post by Karan Lahiri, a practicing advocate based in New Delhi.)

[This essay assumes that the reader has read the 10-part series on the Puttaswamy decision on this blog]

The decision handed down by nine judges of the Supreme Court of India in Justice K.S. Puttaswamy v. Union of India has been received with much optimism. It is being seen as a milestone, not only in how it removes two unsightly stains on the Supreme Court’s legacy [i.e. the express overruling of A.D.M Jabalpur v. Shivakant Shukla (See Part IX), and the dismantling of Suresh Kumar Koushal v. Naz Foundation (See Part V]], but also in how it carves out the various facets of the larger – and more abstract – concept of privacy.

The edifice built by this judgment, however, has two deep flaws (both in Justice Chandrachud’s plurality opinion, joined by three other judges), which should not be lightly glossed over.

The first flaw is that there is a huge hole in the judgment, which looks distinctly like an Aadhar-shaped hole. Nowhere is this more apparent than Paragraph 181 of Justice Chandrachud’s opinion, where he discusses the idea of what constitutes a “legitimate state interest”, one of the three prongs of the test laid down by him to justify incursions into the zone of privacy: –

“Apart from national security, the state may have justifiable reasons for the collection and storage of data. In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes.[Emphasis supplied]

This idea is repeated in his conclusion: –

 “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. These are matters of policy to be considered by the Union government while designing a carefully structured regime for the protection of the data.” [Emphasis supplied]

The idea expressed, in itself, does not seem problematic. Compare this, however, with the Union of India’s position at the time the matter was being referred to a larger bench (recorded in the interim order passed on August 11, 2015): –

“20. The learned Attorney General has further submitted that the Aadhaar card is of great benefit since it ensures an effective implementation of several social benefit schemes of the Government like MGNREGA, the distribution of food, ration and kerosene through PDS system and grant of subsidies in the distribution of LPG. It was, therefore, submitted that restraining the respondents from issuing further Aadhaar cards or fully utilising the existing Aadhaar cards for the social schemes of the Government should be allowed.”

It is almost as if the Union’s position on the legitimacy of Aadhar’s aims has been upheld, despite the narrow scope of the reference and the fact that the constitutionality of the Aadhaar scheme was not under challenge before this bench of nine-judges. Indeed, Justice Sapre, in his separate opinion, has rebuffed attempts by those challenging Aadhar to bring up the specifics of the Scheme in the following terms: –

“39) Some learned senior counsel appearing for the petitioners, however, argued that the law laid down by this Court in some earlier decided cases though not referred for consideration be also overruled while answering the questions referred to this Bench whereas some senior counsel also made attempts to attack the legality and correctness of Aadhar Scheme in their submissions.

 40) These submissions, in my view, cannot be entertained in this case. It is for the reason that firstly, this Bench is constituted to answer only specific questions; secondly, the submissions pressed in service are not referred to this Bench and lastly, it is a settled principle of law that the reference Court cannot travel beyond the reference made and is confined to answer only those questions that are referred.”

If, indeed, the bench was expected to cleave close to the reference when Senior Counsel appearing for the Petitioners attempted “attack the legality and correctness of Aadhar Scheme in their submissions”, then equally, it should not have overreached itself in endorsing a hypothetical government objective which, in effect, sounds a lot like the Union of India’s justification of the Aadhar Scheme. Depending on how smaller benches of the Court act in this future, this overreach, whatever the reason, might be seen by future generations as nothing short of sophistry.

The second flaw is the deployment of the “reasonable expectation of privacy” test in Justice Chandrachud’s plurality opinion, where he writes, under the heading “Essential Nature of Privacy”: –

“The lives which individuals lead as members of society engender a reasonable expectation of privacy. The notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. The notion that there must exist a reasonable expectation of privacy ensures that while on the one hand, the individual has a protected zone of privacy, yet on the other, the exercise of individual choices is subject to the rights of others to lead orderly lives… Hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation.” [Emphasis supplied]

 This basically attempts to limit the privacy right of the individual to that, which, as a member of society, she can reasonably expect. The degree of privacy thus, which one can reasonably expect, is that which does not interfere with “the rights of others to lead ordinary lives”. The problems with this line of reasoning are twofold, one of which is textual and the other doctrinal.

1. The Textual Problem

The Constitution has already defined, in its text, the social interests or “the rights of others” that can be invoked by the State in justifying incursions into fundamental rights. For example, in a given case, if there is an interference with a facet of the right to privacy emanating from Article 19(1)(a), the only “reasonable restrictions” recognized are those contained in Article 19(2), “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”, which do not recognize any broader social or public interest. This is why Justice Nariman, in his separate opinion (which I personally feel is the one which is most doctrinally sound), writes that “when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed.” Justice Chandrachud’s opinion, however, uses these “rights of others” not merely to restrict the right to privacy, but to limit the very contours of the meaning of privacy. This is nothing but a variation of the Supreme Court’s notorious “balancing” test (critiqued on this blog here), where unenumerated public or social or community interests are used to restrict fundamental freedoms.

2. The Doctrinal Problem

The doctrinal inconsistency in Justice Chandrachud’s deployment of the “reasonable expectation of privacy” test lies in the fact that he uses it to limit the scope of an individual’s right to privacy based on “the rights of others”. However, this test, originating in American jurisprudence, has not been used in the United States to subordinate individual rights to amorphous social interests (“the rights of others”), but has been used to identify places where individuals can claim a Fourth Amendment right against unreasonable searches and seizures.

The test itself is traceable to the US Supreme Court’s decision in Katz v. US. The Fourth Amendment of the American Constitution protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In Olmstead v. US, this was read strictly to mean that an unreasonable search and seizure only occurs when there is a physical “entry” into the “houses or offices of the defendants”.

The decision in Katz untethered the Fourth Amendment from the home (reflected in its text which covers persons, houses, papers, and effects), moving beyond the idea that unreasonable searches and seizures could only happen when there were physical intrusions into a home or office. It is in this context, while reversing a conviction based on evidence gathered with a listening device attached to the outside of a phone booth, that Justice Potter Stewart observed that “the Fourth Amendment protects people, not places”. In his concurrence, Justice Harlan speaks of the “reasonable expectation of privacy”, connecting the Fourth Amendment protection afforded to people once again to the dynamics of spaces: –

“As the Court’s opinion states, “the Fourth Amendment protects people, not places.” The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a “place.” My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.” Thus, a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the “plain view” of outsiders are not “protected,” because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable. Cf. Hester v. United States, supra.

 The critical fact in this case is that “[o]ne who occupies it, [a telephone booth] shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume” that his conversation is not being intercepted. Ante at 389 U. S. 352. The point is not that the booth is “accessible to the public” at other times, ante at 389 U. S. 351, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable. Cf. Rios v. United States, 364 U. S. 253.” [Emphasis supplied]

 Therefore, the question that Justice Harlan was answering, purely in the context of the Fourth Amendment was ­– in what places does the Fourth Amendment protect people against unreasonable searches and seizures? His answer is, first, that this protection is available where the individual subjectively expects privacy. So, for instance, there would be no Fourth Amendment protection if a Federal Agent overhears a loud public conversation in a crowded restaurant, since the speakers do not expect privacy. The additional limb is that society must recognize as reasonable the expectation of privacy of an individual in that space. Therefore, even if the person speaking openly in a crowded restaurant expects not to be overheard, this expectation would be an objectively unreasonable one based on prevailing social standards, as opposed to, let us say, a reasonable expectation of privacy that would be objectively valid if a private conversation was taking place in an enclosed private dining area.

Justice Chandrachud’s opinion, emphasizing the “rights of others”, has used this test to limit the very meaning of the broader right to privacy using the “reasonable expectation” test, in a manner which is completely at odds with US jurisprudence. This is despite the fact that in the United States, this is a pure Fourth Amendment test, and is not used to adjudicate cases where a broader right to privacy is involved, as emerging from the “penumbras” of the Bill of Rights (à la Griswold etc.). Secondly, in the United States, this test is only used to analyze whether the subjective expectation of privacy in the context of unreasonable searches and seizures, in Fourth Amendment cases, is objectively valid within particular physical spaces, based on social mores surrounding such spaces. There are no “rights of others” being balanced against the right to privacy. In fact, in the US, the “rights of others” is not even an ingredient in the “reasonable expectation of privacy” test.

Therefore, in Katz, a Fourth Amendment claim can be made in respect of a conversation in a phone booth, a “temporarily private place” which, based on social standards is recognized as a space where “momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.” If Katz were to be decided based on the test which Justice Chandrachud has laid down, the Court would have ascertained the social interests or the “rights of others” involved, in order to determine whether a law enforcement agency could eavesdrop. So, for instance, the subject matter of the conversation or the identity of the defendant as a suspect could be used to justify an unconstitutional intrusion, perhaps based on a broad social interest in crime prevention. This is never what Justice Harlan intended when he laid down the reasonable expectation of privacy test.

Fortunately, in a case like Puttaswamy, where there is no single majority opinion rendered by five out of nine judges, what can be considered binding law must be arrived at by parsing the six plurality opinions, and understanding which propositions command the support of five or more judges, to form a determinative majority. Therefore, no proposition laid down in Justice Chandrachud’s opinion (on which a total of four judges have signed off, including Justice Chandrachud) can be considered to be binding unless supported by one of the other plurality opinions. A lot, therefore, will depend on what reading of Puttaswamy is advanced by future lawyers, and how future benches deal with it.

It therefore remains to be seen, in individual cases, whether these blemishes become mainstreamed, tarnishing the legacy of Puttaswamy, or whether they fade into oblivion.