A Start, Not the Culmination
The right to privacy judgment reaffirms the individual’s right to dignity and freedom.
The Supreme Court’s nine-judge bench ruling in Justice K S Puttaswamy v Union of India, delivered on 24 August, is a new charter of rights for the Indian citizen in the 21st century. Apart from overturning past precedents on the right to privacy and effectively erasing some of the most disgraceful judgments of the Court on matters of civil rights (ADM Jabalpur v S S Shukla and Suresh N Koushal v Naz Foundation), it has also set the course for a progressive and meaningful interpretation of civil–political rights in the context of the Constitution.
The judgment has grounded privacy on not just the text of the Constitution but also on international law and broader principles that have been accepted in most other liberal democracies. It has brought India’s rights jurisprudence in line with that of the rest of the world, keeping in mind the developments in technology and governance. Where the Supreme Court once dismissed the notion that surveillance by the state could affect one’s exercise of fundamental rights (in Kharak Singh v State of UP), it has now created the grounds for effectively dismantling unjustified surveillance measures. With technology providing new ways for governments to obtain information about citizens, the Supreme Court’s judgment defends dissent and non-conformity in a democracy.
It would be a mistake though to see this judgment only through the lens of data protection and state surveillance. By recognising that privacy includes not just the power to control information about oneself, but also bodily autonomy and the right to make choices, the Supreme Court has given citizens a powerful tool to challenge intrusive actions. The immediate consequences of this finding will be seen in the challenge to Section 377 of the Indian Penal Code, 1860, which criminalises homosexuality, and perhaps the pending challenge to the draconian state government bans on possession of beef and alcohol. It will also have an impact on laws relating to reproductive rights, whether in the context of abortion or surrogacy, living wills, mental health, disability rights, and many other areas. Specifically, it will affect those parts of the law that deny citizens the right to choose what is in their best interests and impose the will of a paternalistic state on them.
To the pending challenge to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and subsequent notifications extending the Aadhaar’s mandatory use for myriad reasons, the consequences are not so obvious. While the judgment has clarified that the provisions of the law will be tested against the right to privacy laid out in the Constitution, at least one opinion among the six delivered hints that provision of welfare benefits is a ground for restrictions on the right to privacy. That said, it is still possible for the petitioners to claim that the law and its use, even for compelling state interests, is not “just, fair or reasonable.” Whatever the ultimate outcome, the Supreme Court’s judgment has ensured that Aadhaar will receive much greater judicial scrutiny than its makers probably intended.
Nonetheless, the positive impact of the Puttaswamy judgment should not be taken for granted. The jurisprudence of the Supreme Court is replete with grand pronouncements on principle that are retracted shortly afterwards for “pragmatic” or other such concerns. A recent example is the Court’s consistent refusal to apply the principles laid down in the Shreya Singhal case, in which Section 66A of the Information Technology Act, 2000 was struck down as constitutionally invalid, in the context of other cases concerning the freedom of speech and expression. On the contrary, the Court has even invented new grounds for restrictions of the right, beyond the limited grounds available in the Constitution.
The positive impact of this judgment may also get diluted if the courts were to allow claims of privacy to defeat concerns of transparency in governmental functioning. While a body of case law has developed over the years explaining why standards of privacy may have to be different for public figures and private individuals, the broad principles of this judgment could be used in the future to stifle reporting of misdemeanours and crimes of those in positions of power and privilege. It is once again incumbent on the judiciary to draw a careful balance between the two competing concerns in the larger public interest.
The most important takeaway from this judgment is an affirmation of the core constitutional principle that citizens of India are not subjects of the state. Individuals are entitled to live with dignity and the freedom to live their lives to the fullest potential, not because the state lets them, but because it is their right as humans. This judgment is the start, and not the culmination, of the process to fundamentally realign the relationship between the individual and the Indian state.
