COMMENTARY BY JYOTI PANDAY
AUGUST 28, 2017
Last week's unanimous judgment by the Supreme Court of India (SCI) in Justice K.S. Puttaswamy (Retd) vs Union of India is a resounding victory for privacy. The ruling is the outcome of a petition challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. The judgment's ringing endorsement of the right to privacy as a fundamental right marks a watershed moment in the constitutional history of India. The one-page order signed by all nine judges declares:
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 right to privacy in India has developed through a series of decisions over the past 60 years. Over the years, inconsistency from two early judgments created a divergence of opinion on whether the right to privacy is a fundamental right. Last week's judgment reconciles those different interpretations to unequivocally declare that it is. Moreover, constitutional provisions must be read and interpreted in a manner which would enhance their conformity with international human rights instruments ratified by India. The judgment also concludes that privacy is a necessary condition for the meaningful exercise of other guaranteed freedoms.
The judgment, in which the judges state the reasons behind the one-page order, spans 547 pages and includes opinions from six judges, creating a legal framework for privacy protections in India. The opinions cover a wide range of issues in clarifying that privacy is a fundamental inalienable right, intrinsic to human dignity and liberty.
The decision is especially timely given the rapid roll-out of Aahaar. In fact, the privacy ruling arose from a pending challenge to India's biometric identity scheme. We have previously covered the privacy and surveillance risks associated with that scheme. Ambiguity on the nature and scope of privacy as a right in India allowed the government to collect and compile both demographic and biometric data of residents. The original justification for introducing Aadhaar was to ensure government benefits reached the intended recipients. Following a rapid roll-out and expansion, it is the largest biometric database in the world, with over 1.25 billion Indians registered. The government's push for Aadhaar has led to its wide acceptance as proof of identity, and as an instrument for restructuring and facilitating government services.
The Two Cases That Casted Doubts on the Right to Privacy
In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violates the right to privacy. During the hearings, the Central government opposed the classification of privacy as a fundamental right. The government's opposition to the right relied on two early decisions—MP Sharma vs Satish Chandra in 1954, and Kharak Singh vs State of Uttar Pradesh in 1962—which had held that privacy was not a fundamental right.
In M.P Sharma, the bench held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy. They argued that the Indian Constitution does not include any language similar to the Fourth Amendment of the US Constitution, and therefore, questioned the existence of a protected right to privacy. The Supreme Court made clear that M.P Sharma did not decide other questions, such as “whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right to life and personal liberty under Article 21.”
In Kharak Singh, the decision invalidated a Police Regulation that provided for nightly domiciliary visits, calling them an “unauthorized intrusion into a person’s home and a violation of ordered liberty.” However, it also upheld other clauses of the Regulation on the ground that the right of privacy was not guaranteed under the Constitution, and hence Article 21 of the Indian Constitution (the right to life and personal liberty) had no application. Justice Subbarao's dissenting opinion clarified that, although the right to privacy was not expressly recognized as a fundamental right, it was an essential ingredient of personal liberty under Article 21.
Over the next 40 years, the interpretation and scope of privacy as a right expanded, and was accepted as being constitutional in subsequent judgments. During the hearings of the Aadhaar challenge, the Attorney-General (AG) representing the Union of India questioned the foundations of the right to privacy. The AG argued that the Constitution’s framers never intended to incorporate a right to privacy, and therefore, to read such a right as intrinsic to the right to life and personal liberty under Article 21, or to the rights to various freedoms (such as the freedom of expression) guaranteed under Article 19, would amount to rewriting the Constitution. The government also pleaded that privacy was “too amorphous” for a precise definition and an elitist concept which should not be elevated to that of a fundamental right.
The AG based his claims on the M.P. Sharma and Kharak Singh judgments, arguing that since a larger bench had found privacy was not a fundamental right, subsequent smaller benches upholding the right were not applicable. Sensing the need for reconciliation of the divergence of opinions on privacy, the Court referred this technical clarification on constitutionality of the right to a larger bench. The bench would determine whether the reasoning applied in M.P. Sharma and Kharak Singh were correct and still relevant in present day. The bench was set up not to not look into the constitutional validity of Aadhaar, but to consider a much larger question: whether right to privacy is a fundamental right and can be traced in the rights to life and personal liberty.
Aadhaar in jeopardy? Not Quite Yet
Given the government's aggressive defense of Aadhaar, many human rights defenders feared the worst. The steady expansion of the scheme and the delay over the nine-judge bench being formed allowed Aadhaar to become an insidious part of Indian citizens' life. Indeed, in many ways the delay has led to Aadhaar being linked to all manner of essential and nonessential services. In last week's 547-page judgment, the Court is clear about the fundamental right to privacy and has overruled these two past judgments insofar as their observations on privacy were concerned. The constitutional framework for privacy clarified last week by the Court will breathe life into the Aadhaar hearings.
While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery. The order ends the legal gridlock in the hearings on the validity of the scheme. The identification database that Aadhaar builds will not be easy to reconcile in the framework for privacy drawn up in the judgments. Legal experts are of the opinion that, following the judgment, "it is amply clear that Aadhaar shall have to meet the challenge of privacy as a fundamental right."
The Aadhaar hearings, which were cut short, are expected to resume under a smaller three- or five-judge bench later this month. Outside of the pending Aadhaar challenge, the ruling can also form the basis of new legal challenges to the architecture and implementation of Aadhaar. For example, with growing evidence that state governments are already using Aadhaar to build databases to profile citizens, the security of data and limitations on data convergence and profiling may be areas for future privacy-related challenges to Aadhaar.
Implications for Future Case and Statute Law
The lead judgment calls for the government to create a data protection regime to protect the privacy of the individual. It recommends a robust regime which balances individual interests and legitimate concerns of the state. Justice Chandrachud notes, "Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the state after a careful balancing of requirements of privacy coupled with other values which the protection of data subserves together with the legitimate concerns of the state." For example, the court observes, "government could mine data to ensure resources reached intended beneficiaries." However, the bench restrains itself from providing guidance on the issues, confining its opinion to the clarification of the constitutionality of the right to privacy.
The judgment will also have ramifications for a number of contemporary issues pending before the supreme court. In particular, two proceedings—on Aadhaar and on WhatsApp-Facebook data sharing—will be test grounds for the application and contours of the right to privacy in India. For now, what is certain is that the right to privacy has been unequivocally articulated by the highest Court. There is much reason to celebrate this long-due victory for privacy rights in India. But it is only the first step, as the real test of the strength of the right will in how it is understood and applied in subsequent challenges.
