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

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 event, Kharak Singh’s finding that there was no right to privacy under Article 21of 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.]