The Right Side of History

The Supreme Court judgement on the Right to Privacy goes beyond Privacy, and beyond Aadhaar. It amounts to a reissue of the Bill of Rights.

Suppose the government puts you under intensive surveillance without good cause or a warrant. It deputes policemen to follow you around and watch every move of yours. You file suit claiming that your right to privacy has been violated. The case reaches the Supreme Court. The Court in its verdict points out that the Constitution of India does not recognize an explicit right to privacy. However, what the government is doing is quite clearly a violation of your right to liberty, a right that has been clearly enumerated in the Constitution. Therefore, the Court rules, the government needs to stop doing this, and pay you costs.

What I have just described is the Kharak Singh case, one of the two Supreme Court cases that set the precedent that there is no Right to Privacy under the Constitution. The other case was MP Sharma. The observation in that case was gratuitous, and the facts of the case too irrelevant to be worth recounting here, but because MP Sharma was decided by an eight-judge bench, when litigation over Aadhaar threw up the question of a fundamental Right to Privacy, a bench of nine judges was constituted to deliberate over whether to overturn precedent.

The Kharak Singh case perfectly illustrates the discomfort people like me felt with the Right to Privacy. The question isn’t whether we have a Right to Privacy. We do. The question is whether we need a Right to Privacy as a fundamental right.

What is privacy? Reading through the 547-page judgment in the case of Puttaswamy v. the Union of India and others, the judges repeatedly acknowledge the difficulty of defining the term, but start by using “the right to be let alone” as a working definition. Kharak Singh, which involved intrusive surveillance, did involve a violation of privacy, but as the judgment explains, it also involved a direct violation of the right to liberty. Can there be an example of infringement of privacy that does not involve a direct violation of your right to life and liberty under the existing definition of life and liberty, and yet be serious enough to be a fundamental right? Is Aadhaar such an example?

The Aadhaar Connection

Aadhaar is a database of information collected by the government. The government seeks to make providing this information — your name, address and your biometric information like your iris scans and fingerprints — mandatory. Having to give up your personal information certainly involves giving up your privacy, and it doesn’t look like that kind of invasion of privacy is covered under the current definition of life and liberty. But is giving up this information such a serious matter that it needs to be protected as a fundamental right? The State, even without Aadhaar, has had the legal authority to compel some information from you. What is the point at which this exercise of authority becomes a violation of a fundamental right? Suppose you are walking on a street minding your business. A policeman on patrol duty sees you and remembers you. Your privacy has been compromised to an extent, but is it a violation of a fundamental right? Would your answer be any different if a CCTV camera operated by a government agency captures your photograph while you walk on the same street?

These were the questions that the bench had to answer, and they did a very thorough job of answering them. They found that yes, there was a fundamental Right to Privacy. This right flowed out of the basic human dignity promised to us by the preamble of the Constitution. Privacy was both an end in itself, and a means to an end – ie, you need privacy because life in full public glare doesn’t seem like a life worth living, and you need privacy because to be able to exercise your life and liberty to the fullest, you need to do some things in private. Therefore, the right to privacy is an inherent part of the right to life and liberty promised to us under Article 21 of our Constitution, and it is a fundamental right.

The Three Faces of Privacy

The Court also found that this right, in the Indian context, comprised of three aspects:

Privacy of the person.
Informational privacy.
Privacy of choice.

Now, the way I read it, the first and third of these aspects – privacy of the person and of choice – would have been protected to the extent they were in any case by existing precedent. It is on informational privacy that the judgment breaks new ground. It recognizes that in the information age, the data that you provide and the data you generate through your offline and online activities is a part of your self. While each data point about you may be innocuous in isolation, when combined, it can be used to find out everything about your life. If stolen, your data can be used to steal your identity. Data about you is such an important part of your life that if your informational privacy is not protected, your right to life is violated.

While informational privacy is what drives the need for privacy as a fundamental right, the way privacy has been defined in the judgment, the new right acts as a wrapper around the existing rights as well. By reiterating the scope of existing rights, the judgment strengthens them. To show that this Court means what it says, the verdict has reversed some of the SC’s previous mistakes.

One of these is the preposterously reasoned verdict delivered in 2013 – the Suresh Kumar Kaushal v. the Naz foundation case, which upheld Section 377 of the Indian Penal Code. The Puttaswamy judgment hasn’t exactly overturned the verdict, but it has explicitly invalidated the reasoning used to arrive at it. The reasoning, such as it is, is that there have been very few prosecutions under Section 377, and as such the Supreme Court does not concern itself with trivialities. Also, the right of gays and lesbians to their sexual identity was only a so-called right. Puttaswamy reiterates that a violation of the right of even one person is sufficient for the Court to intervene, and the rights in question are not “so-called,” and are an inherent part of the right to privacy. This will pave the way for another bench to complete the task of declaring Section 377 unconstitutional.

The review also resulted in overturning the verdict in the ADM Jabalpur case, an Emergency-era judgment. At issue in that case was the question of whether proclamation of a state of emergency could suspend fundamental rights including the Right to Life guaranteed under Article 21. The judgment held that our rights were granted to us by the Constitution, and what Article 21 granted, Article 368 could take away. The Puttaswamy verdict puts paid to that logic, emphatically stating that our fundamental rights are naturally inherent in us and are not a gift of the state.

The overturning of ADM Jabalpur does not have a great deal of significance in practice. For one thing, after Mrs Gandhi was driven out of office, the Desai government amended the Constitution to safeguard Article 21 even during a state of emergency. For another, under the Basic Structure doctrine, it is unlikely that the Court in present times would countenance a suspension of our fundamental rights. But the verdict does have a symbolic, almost ritual aspect of atonement to it. The author of the ADM Jabalpur judgment was Yeshwant Vishnu Chandrachud, the then Chief Justice of India. One of the nine judges who overturned this verdict is Dhananjaya Yeshwant Chandrachud, his son.

Due Process

Whenever a fundamental right is discussed, there are those who aver that the right is not absolute. Those who want to restrict this right say it with hope while supporters of the right say it with trepidation, fearing that the non-absolute nature of this right will end up destroying it. But of course, no right can be absolute. If our fundamental rights were absolute, then our right to liberty would stop the courts from imprisoning us for crimes, and the right to freedom of expression would mean that the government could not regulate the speech of its employees, including military personnel. The question is not whether our right is absolute, but what kind of restrictions on those rights are acceptable, and what kind of scrutiny such restrictions will face from the courts.

The Puttaswamy judgment addresses this question, and in the process of doing so, it takes us on an interesting journey into the thought process of the drafters of our Constitution. Article 21 says: No person shall be deprived of his life or personal liberty except according to procedure established by law. The clause ‘procedure established by law’ in our constitution is different from the ‘due process’ clause found in that of the USA. It turns out that that this distinction was deliberately drawn, and was intended to serve as a weaker protection of the right than would be afforded by “due process”.

For example, if the government brought in conscription, drafted every adult man and woman in the country and designated us all reservists, all in an attempt to weaken our liberty by bringing the whole citizenry under military justice, it would not violate Article 21 as originally envisioned, because everything happened according to a procedure established by law. Under the due process requirement, this would not pass muster, because the government would have to explain to the courts why this policy was necessary to achieve the goal of national defence. It would also have had to justify imposition of military justice on reservists.

Why did the framers of our Constitution settle for a weaker standard? It turns out that they were influenced by American jurists of the time who were frustrated by their courts’ restraints on Roosevelt’s New Deal policies. Our founders feared that a due process requirement would meet similar resistance from the courts when the government of the new republic took it on the path to socialism. Therefore, they used ‘procedure established by law’, a clause borrowed from the freshly minted Japanese constitution. (Of course, the Japanese constitution was also dictated by the same American jurists.)

To cut a long story short, over time, the distinction between ‘procedure established by law’ and ‘due process’ was judicially obliterated in India. The reasoning, quite simply, is that it would be impossible to perform judicial review and protect fundamental rights if the courts were not allowed to scrutinize the laws that infringe on them. And in any case, the basic rights that the Constitution is protecting are not granted by the Constitution and do not flow from Article 21; instead, they inhere in every human being. So it really does not matter what the letter of Article 21 says. This innovation was probably not introduced with this verdict, but by reiterating it and by justifying it at great length, the Court in Puttaswamy is signalling that they intend to use the highest standard of scrutiny for any law that abridges the Right to Privacy. And of course, the reasoning used has nothing to do with the Right to Privacy, which means that this level of scrutiny will be used for anything that violates a fundamental right.

In other words, this judgment is a landmark that goes beyond Aadhaar, and in many ways even beyond the right to privacy. It effectively amounts to a reissue of our Bill of Rights.

What would be the impact on Aadhaar itself though? The constitutionality of Aadhaar itself was not within the purview of this reference. Based on the guidance provided by the Puttaswamy case, a smaller bench will now hear arguments related to Aadhaar. Guessing how that bench will rule is now in the realm of speculation, but it is unlikely that Aadhaar itself will be declared unconstitutional. Puttaswamy does say that the government may collect citizens’ data for legitimate aims of the state which may include “for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” It would be easy for the government to claim “prevention of dissipation of social welfare benefits” as a justification for Aadhaar, and surely, “encouraging innovation” is a nod to UPI, the Aadhaar-based payments framework that the government is pushing.

The biggest impact of the judgment is likely to be in the domain of data security and data sharing practices. A leak of my personal data is now a violation of my fundamental right. This simple fact should spur both government and private bodies to improve their information security practices. Indiscriminate sharing of personal data, be it from private bodies to the government or vice versa, or within government departments, will come under close scrutiny. The due process requirement imposed by the Court on abridgment of the Right to Privacy should mean that collection of every piece of data will need to be justified by the intended public interest end the government aims to achieve. This should also apply to sharing of the data so collected. If anyone is afraid that the government will set up a vast apparatus of surveillance built upon our personal data with the Aadhaar as the primary key, that fear should be alleviated by the protections this judgment promises.

Making Aadhaar mandatory for all residents might pass muster on the ground that it is necessary to prevent leakages, but if the government attempts to deny benefits or government services to those who are unable to, or refuse to produce the Aadhaar, it may be vulnerable to the challenge that it violates the right to live a life of dignity. Making the Aadhaar mandatory for everything – a phone connection, airline tickets, etc as the government is attempting to do – will surely run into multiple challenges around the right to informational privacy, the right to freely travel around the country, etc.

Overall, this judgment should impose some restraints on the Aadhaar project and constrain it to move it in the right direction. A moderate opponent of the Aadhaar who is enthused by this ruling will have reason to drop his opposition to the Aadhaar, in the same way that if an organization has robust data security and privacy policies, I’d be more willing to trust it with my personal data.

The judgment has been understandably widely welcomed, and many were pleasantly surprised that it was a 9-0 majority. But it should not have been surprising that there was unanimity. This is the kind of ruling that makes history, and being the voice of dissent here would have meant being on the wrong side of history. Of course, the fact that it was very thoroughly reasoned also may have helped. Reading through it, one can’t help remark that this is how judgments ought to be – clarify or set a general principle and provide clear guidance for lower courts to follow. Too often, our Supreme Court has failed in that task. This time, it hasn’t. It needs to make this a habit.

About the author

Ravikiran Rao

Ravikiran Rao works in IT at an American bank. He has been blogging at The Examined Life for the past 15 years and has written for and edited Pragati in its earlier incarnation.