For the Many and the Few: What a Fundamental Right to Privacy Means for India

The last 24 hours have been witness to a fundamental shift in the way our legal regime considers our routine actions. However, the battle has just begun.

The Indian judiciary has lived up to its role as the final guardian of liberty. Credit: Reuters

The Indian judiciary has lived up to its role as the final guardian of liberty. Credit: Reuters

Rarely does a Supreme Court judgment garner media traction akin to an ongoing cricket match. Even more rarely do Supreme Court judges acquire the fanfare commanded by cricketers. Yet, August 24 was an exception and for all the right reasons. In many ways, yesterday’s Supreme Court verdict that upheld the right to privacy as a fundamental right was more than just a legal precedent. It was a ‘moment in history… when the soul of a people, long suppressed, found utterance’.

The nine judges who formed the bench were undoubtedly aware of the significance of the verdict, particularly its implications for the Aadhaar project, the state-sponsored biometric repository of citizen’s data. The expectations from a cross section of civil society were high. While the verdict perhaps was predictable, the judgment exceeded all reasonable expectations. Through 547 pages of prose, poetry and impeccable constitutional reasoning, the nine judges attempted to directly tackle many ills that plague a broad spectrum of India’s teeming multitudes, all while balancing their role as neutral arbiters.

The Supreme Court has come under much fire recently – both on grounds of judicial overreach or restraint uncalled for. The judgment, in that sense, provides the catharsis of sorts. The victory of democracy lies in the citizen’s ability to live life with dignity encapsulated in rights such as privacy, which is for all to enjoy – regardless of ethnicity, language, gender, sexual orientation, religion, race, class or political views.

While the days and weeks to come would feature much analysis on the technical legalese that the Supreme Court laid the foundations for on Thursday, we limit this article to highlighting some of its salient features and taking a step back to celebrate it – as a triumph of our democracy and its hallowed institutions, and for the mute millions whom the ‘system’ has failed for long, but not this time.

The judgment at a glance

The nine judges, through six concurring opinions held that privacy is a constitutionally protected right that emerges from the right to life and liberty guaranteed by Article 21 of the constitution, which is inseparable from the right to live with dignity. In doing so, it explicitly overturned the prior Supreme Court rulings in MP Sharma and Kharak Singh to the extent that they were incompatible with this verdict.

It was clarified that the judiciary did not create a new right in this case but merely granted recognition to a right that already existed as the ‘constitutional core of human dignity,’ privacy, wrote Justice Chandrachud in the opinion authored by him and concurred to by Justices Kehar, Nazeer and Agarwal, is essentially the reservation of a private space for an individual founded on the autonomy of the individual. Of course, it stopped short of enumerating the variety of entitlements or interests that come within the umbrella of the right to privacy. Instead, they left it for future judges to carve out such entitlements depending on the needs of the time, given the nature of the constitution as a ‘living document.’

It did, however, clarify the threshold of invasiveness with respect to this right and adopted the three-pronged test required for encroachment of any Article 21 right – legality-i.e. through an existing law; necessity, in terms of a legitimate state objective and proportionality, that ensures a rational nexus between the object of the invasion and the means adopted to achieve that object. This clarification was crucial to prevent the dilution of the right in the future on the whims and fancies of the government in power.

What then does this judgment really mean? We cull out five key implications, all of which deserve, and will undoubtedly attract independent analyses in days to come.

Also read: FAQ: What the Right to Privacy Judgment Means for Aadhaar and Mass Surveillance

Privacy within the constitution

To the lawyer and the academic, the judgement proves a treasure trove, replete with references and causal connectives to previous decisions by the apex court, interpreting them in light of the current petition. The constitutional questions raised by the judgement, however, stretch well beyond the specific issue of privacy, venturing into the realm of ‘life and liberty’ and the connecting thread between various fundamental rights.

Discussing the interpretation of life and liberty under Article 21, the court reiterated its stance in R.C. Cooper, that fundamental rights exist not in ‘silos’, but often as indivisible units which are rendered meaningless when divorced from one another. Every law which infringes essential liberties need to be examined through a conjoint reading of Articles 14 (equality), 19 (freedom) and 21 (life and liberty). This understanding implies that where liberty and equality intersect, they must both be protected from unjust encroachment by the state in equal measure, failing which the encroaching law is invalidated. While the idea is hardly novel, having its roots in Maneka Gandhi, the application of this principle to the current case ensures that the myriad facets of privacy that pervades the different freedoms found in the fundamental rights chapter are equally protected. Offending any one aspect of the right without following due process could now, justifiably, be struck down as unconstitutional.

It is not often that an overburdened judiciary has the opportunity to rectify past inaccuracies, not least for lack of relevant context. The court on this occasion rose to the challenge through an act of masterful constitutional manoeuvring. While the ADM Jabalpur (habeas corpus) case had nothing to do with the right to privacy itself, in a spark of ingenuity, Justice Chandrachud introduced the decision as a ‘discordant note’ that was inconsistent with the dignity of the individuals and the freedoms and liberties envisaged by the constitution.

In this case, widely recognised as a black mark in the history of the Supreme Court, the constitution bench upheld the suspension of all fundamental rights during Emergency, including the right to life and liberty. In the present case, Justice Chandrachud emphatically declared that the majority had erred insofar as they found that inalienable rights emanated from the text of the constitution and not from the sanctity of life itself. Highlighting the dissent by Justice Khanna, he emphasised the heart of Article 21 lay in the notion of a ‘life with dignity’. This seems especially poignant, reminiscent of the immortal dissent by Justice Subba Rao in Kharak Singh, another case which now stands (partially) overturned. Justice Chelameshwar, pronouncing that ‘man is not a creature of the state’, took a similar view in his opinion.

While the effect of ADM Jabbalpur was nullified by the 44th amendment, Justice Chandrachud’s views exonerated the court of its long-standing guilt in failing to protect essential freedoms at the time of the nation’s gravest peril. It further vindicates the position of the court as the preeminent defender of individual liberties in this country.  

Privacy and sexual autonomy

While the skeleton of the past was buried through the intervention, this bench was in no mood to exculpate its contemporaries either, in its zealous pursuit of justice. Three years ago in the case of Suresh Kumar Koushal vs Naz Foundation a division bench of the Supreme Court struck a deafening blow to the proliferation of progressive values by overturning the decision of the Delhi high court and refusing to strike down Section 377 – the draconian colonial era law that criminalised homosexuality. There were murmurs in academic corridors regarding whether the upholding of privacy as a fundamental right could catalyse judiciary into action in this regard. Such speculation was not needed, however, because in paragraphs 125-128 of the first opinion, Justice Chandrachud, all but struck down the draconian law in this judgment itself.

He wrote, the fact that the LGBTQI community makes up a minuscule fraction of the Indian population is not reason enough to deny them the dignity of privacy with respect to their sexual orientation. He continued, authoritatively cementing the notion that the idea of rights do not depend on their favourable exercise by the majority but in many cases exist to protect minorities from the excesses of majoritarianism.  

Chandrachud then went on to tear apart Justice Singhvi’s proposition in Koushal which relegated the fundamental rights of sexual minorities to ‘so-called rights.’ He strongly objects to this condescension, stating that these rights are not ‘so-called’ or illusory but real rights enmeshed in social constitutional doctrine through a right to life and constitute the essence of liberty and freedom. However, in a fine display of constitutional propriety, he stopped short of exceeding his mandate and explicitly over-ruling the misguided judgment given the curative petition that is pending.

Also read: From Aadhaar to the Closet: Impact of Supreme Court’s Privacy Judgment on Section 377 Litigation

Experiences from other nations show that the legal recognition of a right to privacy have paved the way towards a better deal for sexual minorities and the takedown of discriminatory legislative provisions. In the United Kingdom, for example, the 1950s saw a wave of arrests of non-heterosexual persons, including the famed genius Alan Turing (whose plight was captured beautifully by Benedict Cumberbach in the Morten Tyldum movie The Imitation Game.) The consequent awakening of public consciousness has much in common with India today and the staunch public opposition led to the creation of Departmental Committee on Homosexual Offences and Prostitution chaired by Lord John Wolfenden, which presented what is now known as ‘The Wolfenden Report.’

The report explicitly stated that “…homosexual behaviour between consenting adults in private should no longer be a criminal offence” as it is not the object of the law to interfere in the private life of citizens, resulting  in an amendment to the Sexual Offences Act decriminalising homosexuality in the country. The challenge to this societal construct came, not through a right to equality but through the autonomy guaranteed to an individual in private spaces, which is captured by a right to privacy.

While the impact of this ruling on the curative petition remains to be seen, the verdict does much to avert the state’s watchful gaze on ‘the lives of others’.

Privacy and female autonomy

Sexual minorities are not the only vulnerable groups that benefit from this judgment. The development of the privacy jurisprudence by the US Supreme Court has been of tremendous significance in the context of bodily autonomy and more specifically, ‘a woman’s right to choose’. While US politics remains divided on this issue to this day, the legal right of a woman in choosing to terminate her pregnancy is well established pursuant to the Supreme Court’s decision in Roe vs Wade.

The Indian court, as pointed out by Justice Chelameswar in his separate opinion, while liberally importing US doctrines in interpreting key constitutional provisions, has always stopped short of allowing absolute autonomy to women over her body. Apart from the limitations imposed by statutes like the Medical Termination of Pregnancy Act, the lack of clarity on the status of privacy as a fundamental right could be to blame before now. In dealing with the crucial question of the ‘woman’s right to privacy, dignity and bodily integrity’ in the context of reproductive rights, the bench quoted with approval several judgements which recognised the woman’s right to choose, albeit within this limited sense.

Justice Chelameswar went further than the others in this, considering that the right to terminate life of the foetus sits squarely within the purview of the right to privacy. The divergence here, however, is a matter of degree. The recognition of the woman’s right to her body is significant, as this could potentially form the basis for enlargement of this strictly regulated right in days to come. In a nation where misplaced patriarchy manifests itself through judgements disallowing abortion of foetus conceived through rape, an unambiguous declaration in favour of individual privacy – of which bodily autonomy is the essence – might just prove to be a major milestone towards securing gender justice for the historically suppressed half of our population.

The implications of this judgement may have far reaching consequences in criminalising marital rape. The sanctity of a private married life has historically been an ugly blotch in the evolution of the doctrine of privacy in the US as it enabled the perpetration of coercive sexual assault or even violence within the ‘private sphere’ of marriage. At first glance, therefore, it might seem that this judgment is also a victory for wife-beaters.

We offer two important responses. First, at the theoretical level, we must consider that both individuals in the marriage, including the woman have an individual right to privacy guaranteed by the constitution as per the judgment. A core aspect of this right is of course physical privacy and therefore a right of bodily autonomy. Therefore, it makes little sense to argue that the privacy of marriage enables one individual within this construct to routinely violate the right to privacy of the other. Second, we must consider that the Supreme Court did not uphold an unqualified right to privacy. The state has a legitimate interest in preventing the perpetration of violence or coercive sexual behaviour on its female citizens, even within the domestic sphere. Thus, depending on how the judiciary charts the path forward, this judgment could forge new avenues for the dismantling of female vulnerabilities.

Privacy for the poor

Another hallmark of the joint opinion penned by Justice Chandrachud is his eloquent recognition that privacy cannot be dismissed as an elitist construct, which needs to be forsaken in exchange for welfare benefits from the state. In an article for The Wire last week, we identified why such a notion is dangerous in terms of ensuring the equitable operationalisation of the right by highlighting the challenges faced by those on the lower economic rungs in society, despite there being a judicially recognised right to privacy.

By citing passages from Amartya Sen’s pathbreaking treatise Development as Freedom, Justice Chandrachud explains how an assertion of civil and political rights act as a mechanism to check the fulfilment of socio-economic rights. He concludes by stating that the pursuit of happiness is a combination of autonomy and dignity and are integral facets of privacy, which cannot be sequestered to the upper classes. We hope that this clarification ensures that the dignity inherent in privacy is not sacrificed at the altar of welfare, as has been the case in several other jurisdictions.

Data protection and the proliferation of a digital economy

When it comes to data protection and state surveillance, other jurisdictions have often played the ‘trump card’ of national security to sacrifice and subvert several civil liberties including privacy in other jurisdictions. This sacrificial altar has mainly been applied to the interception of communication or data gathered by the state. Therefore, the explicit recognition of information privacy in the judgment and the extension of the right to privacy of one’s online personality has several positive implications.

First and most importantly, it lays down the constitutional edifice for a data protection regime. Justice Chandrachud, in particular, points out the need for this regime to balance the protection of sensitive information with the demands of national security. While the judgment identifies certain core principles of any data protection regime, it does not interfere in the process. It merely identifies that this is a complex task that will have to be dealt with. This development should be the impetus for bringing India’s data protection regime at par with the standards set by other jurisdictions such as the EU or the US. The perception of a strong data protection regime automatically gives a greater number of individuals and businesses the confidence to engage with the Indian economy, given the cross-border data transfers that would occur.

Also read: After Right to Privacy Ruling, Focus Must Now Be on Creating Robust Data Protection Laws

A second crucial benefit of a strong data protection regime is in law enforcement itself. As detailed by Bedavyasa Mohanty and Madhulika Srikumar in an excellent report, Indian law enforcement agencies currently face a wide range of fetters when trying to access data stored by online tech firms, who are largely located in the US. While diplomacy is advancing in this regard, this judgment now sends a positive signal to our US counterparts in the negotiation and could lead to a direct data sharing agreement between the two countries, rather than relying on a more cumbersome Mutual Legal Assistance Treaties process.

The last, most obvious consequence of this verdict shall be felt in the upcoming five-judge bench decision challenging the constitutionality of the Aadhaar Act, to which all eyes shall now turn. The threat of state surveillance through the creation of a citizen’s biometric database is real. How the court decides to regulate it – the least of which shall be through mandating a strong data protection regime – is vital to the future of civil liberties in this country.

While we may not feel it, the last 24 hours have been witness to a fundamental shift in the way our legal regime considers our routine actions. Our bank accounts, call logs and our late-night trysts are all protected by the penumbra of a mystique right to privacy. Of course, the battle has just begun. There will be times when rabid governments or private actors will try to erode this right. There will be times when the judiciary itself might denigrate the potential we detailed here.

Yet, in a world where judiciaries are fast losing their credibility to political gamesmanship in countries as far-flung as Venezuela and Poland, the Indian judiciary has lived up to its role as the final guardian of liberty. As the nation reels from discourse jaded by unnecessary suicides, unrelenting polarisation and unwarranted deaths – the judiciary has given every Indian something to cheer. It is a victory not just for the rule of law but for the Indian ethos – for the many and the few.

Agnidipto Tarafder is a faculty member at The West Bengal National University of Juridical Sciences, where he teaches a course on Privacy and the Law. Arindrajit Basu is a graduate of the same institution and will be pursuing a Masters in Public International Law at the University of Cambridge.