ISSN (Online) - 2349-8846
-A A +A

Contradictions and Unanswered Questions

Supreme Court’s Privacy Judgment

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is Senior Resident Fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

In reading and understanding the Supreme Court’s judgment in K Puttaswamy v Union of India, the Supreme Court’s articulation of the right to privacy carries within it certain contradictions in thought and approach. Given that this judgment was delivered in the absence of a specific fact situation, its true meaning may only become evident as the Court proceeds to apply it in specific cases. On this front, as we may find out in the future, there is a gap between what the judges are “saying” in this judgment and what they may end up “doing” in the future.

The nine-judge constitution bench’s judgment in K Puttaswamy v Union of India (2017) has been welcomed almost universally, and, somewhat surprisingly, even by the Union of India, which had argued that the Constitution did not envisage a fundamental right to privacy (Indian Express 2017). The Supreme Court’s judgment not only sets aside two earlier precedents (M P Sharma v Union of India [1954] and Kharak Singh v State of UP [1964]) that had held that there was no fundamental right to privacy in India, but has articulated a detailed conception of privacy that could effectively amount to a new charter of rights for all.

This hearing of the nine-judge bench was necessitated because of the divergence in judicial views on the constitutional position of the right to privacy over the years. The M P Sharma and Kharak Singh judgments seemed to say that there is no constitutional basis for a fundamental right to privacy but multiple judgments since seem to have said otherwise. The Court’s final order states that the M P Sharma and Kharak Singh judgments are no longer good law insofar as the fundamental right to privacy is concerned, and all the subsequent judgments that have spoken about the fundamental right to privacy are necessarily right.

The Supreme Court has also wiped out two previous judgments that had, as a consequence of this judgment become bad law, namely, ADM Jabalpur v Shiv Kant Shukla (1976) and Suresh Kumar Koushal v Naz Foundation (2014). The underlying reasoning offered in these two judgments have been declared as being no longer valid on the basis that they have not properly understood the constitutional position in matters of fundamental rights. While this should ordinarily make us hail the K Puttaswamy judgment as a landmark in the development of human rights in India, there remain internal contradictions and questions that have to be raised and addressed before we do that. The true import of this judgment will only ever be understood after subsequent judgments have read and applied it to given fact scenarios and it is here, as I argue in this column, that there is much scope for worry.

Supreme Court’s Findings

Six concurring opinions have been delivered by the constitution bench, and while they agree with each other on all the major findings, they do differ somewhat on the areas where they choose to focus. Justice D Y Chandrachud’s opinion, on behalf of Chief Justice of India J S Khehar and Justices Abdul Nazeer and R K Agrawal, is the longest and discusses all the issues concerning privacy in the greatest depth and detail. It is clearly intended to be the majority judgment and does not make reference to any of the other concurring opinions. Justice Rohinton Fali Nariman’s opinion seems to have been written concurrently (and may also have been intended to be the majority opinion), and does not refer to either Justice Chandrachud’s or the other opinions. The other four concurring opinions of Justices J Chelameswar, A S Bobde, A M Sapre and S K Kaul all refer to Justice Chandrachud’s and Justice Nariman’s opinion and also, in some cases, to each other. (For the purposes of this column, unless otherwise indicated, all references to the K Puttaswamy judgment are to the main opinion of Justice Chandrachud on his own behalf and the behalf of three other judges.)

The common conclusion that has been signed by all judges is only a very laconic and incomplete summary of the conclusions of all the opinions rendered by the judges. It is necessary to try and break down exactly what has been said by the judges.

After a long and elaborate discussion, the main judgment concludes by holding, inter alia, that privacy is primarily composed of three aspects: personal autonomy, freedom of choice and informational control. This formulation comes from the work of scholar Gary Bostwick (1976), who uses the terms “repose,” “sanctuary” and “intimate decision” to describe aspects of privacy. All the opinions use some variation of this concept, but refrain from going too far to elaborate given the absence of a specific fact situation before them. All three aspects have been held to be traceable to not just Article 21 itself, but a recognition of basic human dignity in the Constitution. The main opinion, however, proposes a threefold test to be applied to restrictions on privacy: legality, need and proportionality. This is in addition to the grounds already listed out in the Constitution for restriction of fundamental rights for various reasons.

All opinions, except for that of Justice Nariman, explicitly accept and endorse this main finding, and try to add some more nuances and colour to the issues being discussed in the case. Justice Nariman’s opinion arrives at more or less the same conclusions as the main opinion, but, given that it was probably written concurrently, does not mention those of the main opinion. Both the main opinion and that of Justice Nariman make the sweeping declaration that all subsequent judgments that talk about the right to privacy are necessarily right.

An interesting move is made by Justice Bobde in his opinion, which could have vast implications. He holds that the content of the common law right to privacy (claimed against individuals) is the same as the fundamental right to privacy. This implies that what the Court has done is to elevate the status of the common law right to that of the fundamental right. The necessary corollary is that a law impinging on one’s common law right to privacy could also, theoretically, be struck down as unconstitutional. A law, for instance, that allows private entities to spy on an individual or collect their data without consent would be as unconstitutional as a law permitting the government to do the same.

At least two of the six opinions, namely the ones authored by Chandrachud and Kaul, recognise the “positive” aspects of the right to privacy. Not only is there an obligation on the state not to interfere with the right of individuals, but there is also an obligation to enact such laws and provide such a legal framework that will protect the individual’s privacy from invasion by entities other than the government.

Some very interesting ideas emerge in the course of the judgment and deserve discussion in detail, but the constraints of length mean that they remain outside the scope of this column. Justice Chelameswar’s opinion, for instance, contains an engaging discussion on constitutional theory and interpretation, expounding on the idea that a Constitution is much more than just the words in the text.

In thinking about this judgment, it is important to remember that it was not delivered in the context of a specific fact situation. What this judgment actually means will only be obvious once the Supreme Court chooses to apply the concepts articulated here in other cases, to a dispute or a fact situation before them.

Contradictions and Questions

That said, there are some internal contradictions and inconsistencies with what the Supreme Court has said. The biggest is probably the glossing over of the differences in the many contexts in which the Supreme Court held that there is a “right to privacy” in India. A laundry list of these cases is discussed as evidence of the shifting jurisprudence on fundamental rights in India (K Puttaswamy v Union of India 2017: paras 47–92). This is a somewhat unsatisfactory analysis as the approaches of the judges in all of these have been very different and somewhat contradictory.

As Nariman points out in his opinion, some of the cases (such as District Registrar and Collector, Hyderabad v Canara Bank [2005]) proceed on the assumption that there is a right to privacy that was recognised by the Kharak Singh judgment in a limited fashion under Article 21. However, the Supreme Court’s conclusions in the K Puttaswamy judgment reject that narrow view and hold that privacy is found in all aspects of Part III of the Constitution. If the Supreme Court held that the Kharak Singh judgment’s finding that there was no fundamental right to privacy—and, if at all it existed, it ought to be found in Article 21 only—was wrong, then these cases should have been held incorrect as well. However, this is presented entirely unproblematically as the correct approach to understand the right to privacy under the Constitution, even where the judgment goes ahead to contradict it. Given the somewhat disconcerting conclusions of cases such as Mr X v Hospital Z (1998) in the context of privacy,1 one wonders if it is possible to reconcile at all with the broad principles laid down in the K Puttaswamy judgment.

Just as problematic is the way in which the Supreme Court agrees unhesitatingly with the judgment in Hinsa Virodhak Sangh v Mirzapur Koti Kuresh Jamat (2008). Here, a resolution to shut down municipal slaughterhouses for a religious festival was challenged and, while the Court recognised that there was a fundamental right to eat under Article 21, it held that a nine-day closure was a “reasonable restriction” for the purposes of limiting the right under Article 19(1)(g). The Hinsa Virodhak Sangh judgment never really offers a justification as to why the nine-day ban is just, fair and reasonable with respect to the rights of those who choose to eat meat, preferring to see the issue only from the point of view of the right of slaughterhouses to trade and business. It is an entirely incoherent judgment, which does not particularly offer any clear conception of the fundamental right to privacy and how it may be restricted, but is cited uncritically.

This is in direct contrast to the way in which the Court comes down heavily on the reasoning offered by the Suresh Kumar Koushal judgment in the context of upholding Section 377 of the Indian Penal Code, 1860. The infamous phrase of the “so-called rights of minuscule minority” is rejected (rightly) by any reasoning on law and constitution, yet the Hinsa Virodhak Sangh judgment’s equally dismissive approach in allowing bans on meat consumption for one religious community’s festival is not seen as particularly egregious.

These contradictions, among others, are not just technical and trivial, but something that may go to the heart of the true import of this judgment. Are the grand pronouncements in this judgment going to translate into meaningful expansion of fundamental rights, or will they pass on in history as just pleasing prose? The concepts outlined by the Court in this case will be called upon to decide issues concerning lesbian, gay, bisexual and transgender rights (beyond Section 377), reproductive rights for women, so-called “beef bans,” advance directives for medical treatment, euthanasia, prohibition laws, search and seizure laws, and, not the least of all, the use of Aadhaar in almost every context possible. The Court will be confronted with these issues and, at the same time, be forced into trying to make sense of the contradictions in its approach in this case.

Ominous Portents

How will this play out? Will we see the Supreme Court range forth and fearlessly strike down laws, no matter the consequences? Or will we see the Court find ways to expand the scope of “compelling state interest” and uphold the most egregious laws with a skewed understanding of what constitutes “necessary and proportionate legal restrictions?”

It is hard to say for sure, but the Supreme Court’s handling of the Hadiya case (Shafin Jahans v Asokan K M 2017)2 so far has not provided encouraging signs of its willingness to follow through on its rhetoric on choice and personal autonomy. Not only has an adult woman’s choice of religion and partner been casually discarded by the Kerala High Court (with no interference from the Supreme Court), but her personal autonomy has been nullified as her parents have been given “custody” of her with no real basis in law and fact (Ameerudheen 2017). The Supreme Court does not even seem the least bit concerned about what has happened, preferring instead to send the National Investigation Agency on a wild goose chase on the antecedents of Hadiya’s husband and in-laws without the barest shred of evidence indicating wrongdoing. What is just as worrying is the fact that the bench hearing Hadiya’s case comprised of Khehar and Chandrachud, two of the four judges who signed on to the main opinion in the K Puttaswamy judgment.

While the matter is sub judice and one hopes that the Court realises its own grievous error soon to remedy this injustice, it is perhaps a warning sign: do not expect the courts to invariably side with individual liberty and freedom when they confront powerful interests.

Much as the Supreme Court may want to erase the ADM Jabalpur case from its institutional memory, as precedent, history will remember the justifications judges offered to declare that the law would not protect or provide remedy for an Indian citizen shot dead by the state for no reason. The ADM Jabalpur judgments are also a reminder for all that, when it was most needed, the Supreme Court failed.

Notes

1 For some of the objections against the findings of this judgment, see Abraham (2000).

2 See also, Bhatia (2017).

References

Abraham, Susan (2000): “The Right to Dignity,” Hindu, 15 January, viewed on 18 September 2017, http://www.thehindu.com/2000/01/15/stories/1315054l.htm.

ADM Jabalpur v Shiv Kant Shukla (1976): SCC, SC, 2, p 521.

Ameerudheen, T A (2017): “Ground Report: How Akhila Became Hadiya—and Why Her Case Has Reached the Supreme Court,” Scroll.in, 30 August, viewed on 18 September 2016, .

Bhatia, Gautam (2017): “The Supreme Court’s Right to Privacy Judgment—V: Privacy and Decisional Autonomy,” Live Law, 9 September, viewed on 18 September, http://www.livelaw.in/supreme-courts-right-privacy-judgment-v-privacy-decisional-autonomy/.

Bostwick, Gary (1976): “A Taxonomy of Privacy: Repose, Sanctuary and Intimate Decision,” California Law Review, Vol 64, No 6, pp 1447–83.

District Registrar and Collector, Hyderabad v Canara Bank (2005): SCC, SC, 1, p 496.

Hinsa Virodhak Sangh v Mirzapur Koti Kuresh Jamat (2008): SCC, SC, 5, p 33.

Indian Express (2017): “Centre Welcomes Privacy Verdict: ‘Crux of Supreme Court Judgment Wider Affirmation of Govt View,’” 24 August, viewed on 18 September 2017, .

K Puttaswamy v Union of India (2017): Writ Petition (Civil) No 494 of 2012, Supreme Court judgment dated 24 August.

Kharak Singh v State of UP (1964): SCR, SC, 1, p 332.

M P Sharma v Union of India (1954): SCR, SC, p 1077.

Mr X v Hospital Z (1998): JT, SC, 7, p 626.

Shafin Jahans v Asokan K M (2017): SLP (Criminal) No 5777 of 2017, Supreme Court order dated 10 August.

Suresh Kumar Koushal v Naz Foundation (2014): SCC, SC, 1, p 1.

Updated On : 22nd Sep, 2017

Comments

(-) Hide

EPW looks forward to your comments. Please note that comments are moderated as per our comments policy. They may take some time to appear. A comment, if suitable, may be selected for publication in the Letters pages of EPW.

Back to Top