Right to privacy

A historic moment

Print edition : September 15, 2017

The Supreme Court of India. Photo: The Hindu Archives

Chief Justice J.S. Khehar. Photo: PTI

Justice D.Y. Chandrachud. Photo: Rajeev Bhatt

Justice R.K. Agrawal. Photo: K. Pichumani

Justice S. Abdul Nazeer. Photo: Prakash Hassan

Justice Rohinton Nariman. Photo: S. Krishnamoorthy

Justice A.M. Sapre.

Justice S.K. Kaul. Photo: S. SIVA SARAVANAN

Justice J. Chelameswar. Photo: R.V. Moorthy

Justice S.A. Bobde. Photo: V. Sudershan

The Supreme Court’s landmark judgment elevating the right to privacy as a fundamental right is a significant reminder of India’s republican values and their relevance to all classes of people.

A FUNDAMENTAL RIGHT TO PRIVACY HAS always been assumed to exist under the Indian Constitution. The courts too have recognised that such a guarantee is implicit in some of its key provisions under Part III, dealing with fundamental rights. Therefore, when the Supreme Court’s nine-judge Constitution Bench made an express declaration that the right to privacy enjoyed state protection under Article 21 of the Constitution, it appeared as if the court was refreshing its nearly seven-decade-old jurisprudence.

The judgment in Justice K.S.Puttaswamy (Retd.) vs Union of India, delivered unanimously by nine judges on August 24, is remarkable for its clarity of vision and elegance throughout its 547 pages.

To many who followed the hearing of the case closely, the outcome is not at all a surprise. After 70 years of Independence, it would have been highly unpopular for India’s Supreme Court, and any of its judges, to subscribe to a proposition that ran counter to the liberal ethos of the times. Therefore, the nine judges simply had no option but to declare that the right to privacy was a fundamental right. Even the consensus among the judges on the issue could not be just a coincidence. Any judge expressing a dissenting view could have run the risk of being seen on the wrong side of history.

The surprise was, however, over how the Union of India and the respondents could adopt before the court the extremely regressive view that the right to privacy did not deserve to be a fundamental right. There cannot be a right to be left alone when man is a social animal, said senior counsel Aryama Sundaram, counsel for Maharashtra. The right to privacy was demanded by only those who had something to hide, said Rakesh Dwivedi, senior counsel for Gujarat. The right to privacy had no relevance for the hungry millions, said the Attorney General, K.K. Venugopal. Privacy was just a facet of liberty, and being amorphous, it could not be elevated to the status of a fundamental right, was the refrain of many respondents before the court.

The six separate judgments delivered by the judges provide comprehensive answers to each and every misgiving expressed by the respondents. The lead judgment was delivered by Justice D.Y. Chandrachud on behalf of himself, Chief Justice J.S. Khehar, and Justices R.K. Agrawal and S. Abdul Nazeer. Justices J. Chelameswar, S.A. Bobde, Rohinton Fali Nariman, Abhay Manohar Sapre and Sanjay Kishan Kaul delivered separate judgments expressing their agreement with the main opinion authored by Justice Chandrachud.

A bench of nine judges had to be constituted because a five-judge bench hearing the challenges to the Central government’s Aadhaar Act had found that it could not proceed further without clarifying whether the right to privacy was a fundamental right under the Constitution. And the five-judge bench realised that it could not hear and decide the issue because two previous benches of the court, with eight and six judges each in 1954 (in the case of M.P.Sharma vs Satish Chandra, District Magistrate, Delhi) and 1962 (in the case of Kharak Singh vs State of Uttar Pradesh) respectively, had given rulings that were interpreted by the respondents as having rejected the right to privacy as a fundamental right.

As five judges cannot overrule a decision rendered by six or eight judges because of the norms of judicial discipline, Chief Justice Khehar (who retired after delivering the verdict) constituted the nine-judge bench and completed the hearing of the case in seven days in July. But the significance of the nine-judge bench does not lie in the numbers alone. A layman is sure to ask what difference it makes if privacy is recognised as a fundamental right rather than an ordinary right. Fundamental rights enjoy constitutional protection. As Justice Chandrachud explains, if privacy is to be construed as a protected constitutional value, it would redefine in significant ways our concepts of liberty and the entitlements that flow out of its protection.

But the definition of the right to privacy was elusive during the hearing of the case. The nine-judge bench found merit in the lone dissenting view of Justice Subba Rao in the Kharak Singh case. Justice Subba Rao had held that though the Constitution did not expressly declare the right to privacy as a fundamental right, such a right was essential to personal liberty.

Surveying the case law on the subject, Justice Chandrachud was quick to reach certain conclusions. One is that 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.

Clarifying further, Justice Chandrachud observed that the right to be let alone was a part of the right to enjoy life. The right to enjoy life was, in its turn, a part of the fundamental right to life of the individual, he held.

As Indian society evolved, the assertion of the right to privacy had been considered by the Supreme Court in varying contexts replicating the choices and autonomy of the individual citizen, Justice Chandrachud observed.

The bench overruled both M.P.Sharma and Kharak Singh to the extent they held that the right to privacy was not protected under the Indian Constitution.

During the hearing, most of the respondents, including the Centre, argued that the Constitution framers did not want privacy to be elevated as a fundamental right, as shown by the Constituent Assembly Debates.

The answer to this was provided by Justice Chandrachud as follows: “Would this court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen.”

Aberrations corrected

The privacy judgment has enormous significance in correcting certain historical aberrations, which had tarnished the Supreme Court’s image in the past. One is the court’s judgment in ADM Jabalpur vs Shivakant Shukla, delivered during the Emergency by a five-judge Constitution Bench of which Justice Chandrachud’s father, Justice Y.V. Chandrachud, was a member.

The issue before the court was whether the President could suspend the right of every person to move any court for the enforcement of the right to personal liberty under Article 21 upon being detained under a preventive detention law. Four of the five judges answered the question in the affirmative. Justice H.R. Khanna dissented and emphatically held that the suspension of the right to move any court for the enforcement of the right under Article 21, upon a proclamation of Emergency, would not affect the enforcement of the basic right to life and liberty. Justice Khanna added that the Constitution was not the sole repository of the right to life and liberty and that even in the absence of Article 21, it would not have been permissible for the state to deprive a person of his life and liberty without the authority of the law.

Justice D.Y. Chandrachud disapproved the judgments of the majority judges in this case. He held in paragraph 119: “The judgments rendered by all the four Judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised by Kesavananda Bharati, primordial rights. They constitute rights under natural law.”

The overruling of the judgment authored by Justice Y.V. Chandrachud by his son after 40 years is one of the salient aspects of the Supreme Court’s privacy judgment. It was as if Justice D.Y. Chandrachud was waiting for this moment to correct a historical aberration for which his father, who was among the four judges who delivered it, was often criticised during his lifetime and after.

Although the judgment in ADMJabalpur was so unpopular that the court did not rely on it as a precedent in subsequent cases, the court did not have the opportunity to overrule it expressly. This opportunity unfolded before the bench in the Puttaswamy case. The bench did not take long to overrule it accordingly, along with another subsequent decision, Union of India vs Bhanudas Krishna Gawde, delivered in 1977.

Justice Sanjay Kishan Kaul, in his judgment, observed that the majority opinion in ADM Jabalpur must be buried ten fathom deep, with no chance of resurrection. Justice Nariman, in his separate judgment, endorsed the overruling.

Another aberration in the Supreme Court’s history which the Puttaswamy bench sought to undo was in Suresh Kumar Koushal vs Naz Foundation, delivered in 2014. A two-judge bench of the court had set aside a judgment of the Delhi High Court holding that Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private, was violative of Articles 14, 15 and 21 of the Constitution. The Supreme Court, while setting aside the High Court’s verdict, held that a minuscule fraction of the country’s population constituted lesbians, gays, bisexuals and transgenders (LGBT) and in the last more than 150 years fewer than 200 persons had been prosecuted under Section 377 and this could not be the basis for declaring that it was unconstitutional. The Supreme Court also rejected the Delhi High Court’s reliance on judgments in foreign jurisdictions to support its verdict.

In the Puttaswamy judgment, Justice Chandrachud held that neither of the above reasons could be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21. He reasoned: “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 test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs, or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

Finding the Supreme Court’s 2014 judgment in Koushal unsustainable, the Puttaswamy bench disagreed with it saying LGBT rights could not be construed to be “so-called rights”. Their rights were not “so-called”, but were real rights founded on sound constitutional doctrine, Justice Chandrachud wrote.

He explained that the invasion of a fundamental right was not rendered tolerable when a few, as opposed to a large number of persons, were subjected to hostile treatment. The chilling effect on the exercise of the right posed a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity, he further reasoned.

The bench, however, refrained from overruling the Koushal decision because a curative petition filed against it was pending before another bench. “We would leave the constitutional validity to be decided in an appropriate proceeding,” Justice Chandrachud’s judgment reads. Justice Kaul concurred.

Charge of elitism answered

Responding to the contention that the right to privacy is an elitist concept, Justice Chandrachud said: “Our Constitution places the individual at the forefront of its focus, guaranteeing civil and political rights in Part III and embodying an aspiration for achieving socio-economic rights in Part IV. The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights. Above all, it must be realised that it is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this court.”

But there was one aspect of the right to privacy on which there was unanimity among the petitioners and the respondents. It is that the right to privacy is too amorphous to be defined in specific terms and that it should be left to evolve from case to case. But this agreement itself became the reason for divergence between them, with the petitioners seeing no harm in declaring it as a fundamental right and the respondents insisting that a right should be recognisable in order to guarantee its protection.

The petitioners apprehended that a restrictive definition of the right to privacy specifying what it included could hamper its growth in the future. The respondents, on the contrary, suggested that a mere finding that the right to privacy was a fundamental right, without specifying its contours, could limit the state’s pursuit of its development agenda.

Agreeing with the petitioners that privacy must be left to evolve case to case, Justice Chandrachud laid down three grounds to justify an invasion of privacy. They are existence of a law, a legitimate state aim suffering from no arbitrariness, and proportionality of the means to the object. The court is expected to apply these grounds to judge invasion of privacy by state and non-state actors in a particular case before it.

The technological development today can enable not only the state but also big corporations and private entities to be the big brother, Justice Kaul cautioned.

It was during the hearing of the case that the Centre disclosed that it proposed to set up an expert committee, headed by former Supreme Court judge B.N. Srikrishna, to draft a robust data protection law.

But data protection, as the petitioners’ counsel, Shyam Divan, explained, is only one facet of the right to privacy, that is, the right to informational privacy. But there are other facets too which need protection as a fundamental right: the right to bodily integrity, the right to be forgotten and even the right to be let alone. The sharing of biometric data, which the Aadhaar scheme entails, involves many facets of the right to privacy.

The first reference to the larger bench in the Aadhaar case was in August 2015 by a three-judge bench, which was reiterated by a five-judge bench in October that year. But it took nearly two years for the court to set up a larger bench to hear and decide the limited issue of whether privacy is a fundamental right—raised by as many as 21 petitioners before it.

Petitions challenging the Aadhaar Act will now be heard and decided by regular benches of the Supreme Court in the light of the privacy judgment, even as the petitioners are jubilant that they stand vindicated.

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