Right to Privacy: SC to Make History, But Maybe Not In a Good Way

Do we have a fundamental right to privacy? The SC decision will affect policy and jurisprudence for years to come.

In the course of 51 minutes on Tuesday, the Supreme Court did more than it had previously done in 707 days to answer a crucial question:

Do Indian citizens have a fundamental right to privacy?

On 11 August 2015, three judges of the Supreme Court, hearing a challenge to the constitutionality of the Aadhaar programme, asked for a Constitution Bench (i.e. a bench of 5 judges or more) to be set up to examine this question. It took till 18 July 2017 for such a Bench to be set up, and over the course of 2 days, it was supposed to merely decide whether 5 judges were sufficient to look into the question or whether 9 judges were required.

However, after hearing the lawyers for both sides for less than an hour, the bench headed by Chief Justice of India JS Khehar not only decided that a 9 judge bench was required to answer the question, but that this bench would be constituted the very next day to give the answer.

Also read: Aadhaar: 9-Judge Bench to Determine Right to Privacy on 19 July

Regardless of how the question is answered, the decision will have far-reaching consequences. The size of the bench will mean that the decision taken will remain in force for many years to come, and the way in which the Court arrives at its answer will affect the way we view and interpret fundamental rights in this country for generations as well.

What is the Importance of This Question?

There is a lot at stake in what this 9-judge bench will hold. The government’s seeming obsession to link public and private services with Aadhaar is obviously the elephant in the room, but what the Court says on 19 July will affect how all other laws and regulations will be framed in the future as well.

The issue before the court touches upon some crucial aspects of your life – your expectation and entitlement to not have your personal life interfered with, your ability to maintain differences between your public and private life, and the prohibition of intrusive surveillance of your life by the State.

Understanding the nature of the right to privacy is not an easy task. It is recognised in the Universal Declaration of Human Rights, but even today, there are very few countries that expressly recognise it as a constitutional right. Countries bound by the European Convention on Human Rights aside, privacy laws in most countries around the world are not exactly watertight. Even the USA relies on an interpretation of various Amendments for its conception of a right to privacy.

The Constitution of India similarly does not expressly provide for a right to privacy. It is because of this that the government is arguing that Indian citizens only have a “common law right to privacy”. If this is indeed the case, the standards to be met by laws that restrict or regulate it are much lower, making it easier for a government to sacrifice privacy at the altar of some vaguely defined interest.

If it Isn’t Listed in the Constitution, Can Privacy be a Fundamental Right?

Fundamental rights have to stem from the Constitution. Part III of our Constitution specifies our fundamental rights, including the right to freedom of speech, the right against self-incrimination, and the right to judicial review.

Just because a right is not expressly specified in the Constitution, however, does not mean that it cannot be constitutionally guaranteed. There are more than 40 years of jurisprudence that show that fundamental rights are to be interpreted in light of a structural reading of the entirety of Part III of the Constitution, including the right to equality under Article 14, the fundamental freedoms under Article 19 and the right to life and personal liberty under Article 21.

The origins of this approach were established in 1970 in the Bank Nationalisation case, and it has been the basis of many notable decisions, perhaps the most important of which was the Maneka Gandhi case in 1978 which held that the right to life and personal liberty had to be interpreted broadly with other fundamental rights.

Over the years, this has been the basis for a number of cases which have greatly expanded the scope of fundamental rights in the country, including the right to a clean environment, and even the Vishakha guidelines against sexual harassment.

There is also a long line of cases under this approach which have held that Indian citizens have a right to privacy that is part of the Fundamental Rights. The starting point is Gobind v State of Madhya Pradesh in 1975, in which the Supreme Court found that certain intrusive police regulations were unconstitutional, because privacy was a precondition for the enjoyment of other fundamental rights in the Constitution.

This fundamental right has subsequently been at the heart of consistent jurisprudence for 40 years. For instance, leading academic and lawyer Gautam Bhatia noted in a 2015 article how it was “invoked to limit state surveillance, curtail intrusion into personal details such as bank data, and hold unconstitutional invasive interrogation techniques such as narco-analysis.”

How is the Govt Arguing That Privacy is not a Fundamental Right?

The government’s interpretation of the right to privacy arises out of two judgments of the Supreme Court that were decided by large Constitutional Benches, Kharak Singh (6 judges) and MP Sharma (8 judges). This large bench strength is the reason why 9 judges will be hearing the matter on 19 July, as if the Court is to lay down a position contrary to these cases, it cannot do so with a bench made up of fewer judges.

In both these cases, the Supreme Court had stated that the right to privacy did not exist under the Indian Constitution. Given that these cases were decided in 1963 and 1954, the Attorney-General will argue that any subsequent decisions of the Supreme Court, such as the Gobind case, which were decided by smaller benches, are incorrect, and cannot be said to authorise the proposition.

What Will the Supreme Court Decide?

Shyam Divan and other lawyers arguing in favour of privacy as a fundamental right have strong grounds to argue that the Kharak Singh and MP Sharma cases do not actually have the effect the government claims. These cases were decided before the Bank Nationalisation case, which overruled the approach towards fundamental rights. There is also a reasonable argument to make that the parts of the decisions saying that privacy is not a fundamental right were not part of the ratio, i.e., the rationale of the case.

At least two of the judges of the Supreme Court, Justice Chelameshwar and Justice Bobde, are of the opinion that reading those cases as the government wants would lead to an unacceptable erosion of fundamental rights in the country.

This is also the view of the petitioners. CJI Khehar’s stance on the matter is unclear, as those of the other judges in the court. We do not know which judges will be part of the bench, and there is reason to believe that some judges will not view privacy as a fundamental right.

The Court has finally shown the kind of urgency this case deserved from the start, but we must take care to not assume this means they will reach a decision we find favourable. Even if the judges agree that fundamental rights need to be read expansively, they may still find that privacy is not fundamental, and if that happens, this decision’s precedent will be well-nigh impossible to escape for decades to come.

How Will The Decision Affect Aadhaar?

This is why Divan and his team would have preferred the Court to simply decide that there was no need to refer the matter to 9 judges, that 5 judges were sufficient in light of Maneka Gandhi and other cases which have expansively interpreted the fundamental rights.

Because if the Court finds that privacy is not protected in the Constitution, then whatever little hopes existed to stop Aadhaar from being the means to create a surveillance state, will be in tatters. Aadhaar’s biometric component, which has been particularly vulnerable to failures, will be inextricably linked to our interactions with the government and everyday life, without any compelling reason.

Even if the Court finds that privacy is a fundamental right, the 9 judge bench will not decide on the validity of Aadhaar.

A separate bench (likely to be 5 judges) will then assess the Aadhaar scheme in light of this finding. Apart from the dangers of delay which could very well render the benefits of such a finding useless, the judges could find that Aadhaar is not violative of privacy since it follows a procedure established by law under the Aadhaar Act 2016 and which they think is not unreasonable.

The hope, of course, is that Wednesday’s decision will find privacy to be a fundamental right, and this will then form the basis for declaring Aadhaar’s linkage to various schemes unconstitutional. Doing so will affirm a more humane, holistic view of fundamental rights that will protect this country from draconian laws, and avoid the huge potential for misuse of something like Aadhaar.

On the other hand, if the decision goes the other way, we will witness the death of a jurisprudence that helped fight unwanted intrusion by the state into our lives for 40 years. And in a time when the data to be mined from Aadhaar is estimated to be worth $600 billion in India alone, we can be sure that there’s much more still to come.