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)


“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 Gandhia 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.




Filed under Free Speech, Privacy

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.





Filed under Privacy

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

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

The Formulation of Decisional Autonomy

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

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

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

Beef and Alcohol

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

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

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

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

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

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

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

Sex Work

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

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

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

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

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

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

Sexual Orientation

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

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

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

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

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

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

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

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

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

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

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


Filed under Decisional Autonomy, Privacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Filed under Bodily Privacy/Integrity, Privacy

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

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

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

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

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

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

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


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

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

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

“In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness….  Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the “free” movement guaranteed by sub-cl. (d).  Art. 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.”

The core disagreement between the majority and Justice Subba Rao, therefore, was not merely an interpretive dispute about how to read the Constitution, but a much deeper and more fundamental clash: was the Constitution’s protection of the human body limited to physical and observable constraints, or did the Constitution protect something more intangible as well – that “realm of privacy where creativity, dissent, and challenges to orthodoxy germinate”?

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

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

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

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

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

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

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

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



Filed under Bodily Privacy/Integrity, Privacy, Surveillance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Filed under Bodily Privacy/Integrity, Decisional Autonomy, Privacy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proposition Three: The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[To be cont’d.]

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


Filed under Privacy