Splits & Separate Opinions: Possibilities in SC Privacy Judgment

Will the SC’s Right to Privacy judgment be smooth sailing? Don’t count on it.

(Update: Sources say the nine-judge bench will deliver four judgments today.)

Do Indian citizens have a right to tell the Government to not get all pados-wali aunty and obsessively ferret out the details of your life? Can you keep your embarrassing search history from being published online? Will the Night King need an Aadhaar card for his new Ice Dragon?

These (and more) are the questions that will be answered tomorrow when the Supreme Court publishes its decision on whether Indian citizens have a fundamental right to privacy.

Or at least we assume with absolute confidence reasonable confidence a vague trepidation of hope, that we will be able to answer some of those questions after the Supreme Court decision.

Because this isn’t going to be some quaint little thing that you can break down into a couple of easy-to-read bullet points, and then move on from while contemplating the more serious questions about life, the universe and everything.

This is a judgment that will have far-reaching consequences, involves complex issues of law, and will be the definitive statement on these issues for decades to come. Which means that it will be a little tougher to read than Lord of the Rings, but much easier than Dostoevsky.

Also Read: Is Right to Privacy a Fundamental Right? SC to Decide Tomorrow

So what are the various complications that can arise in it?

Not Fun Possibility 1 - Split Verdict

A bench of NINE judges was assembled to hear the case. Nine former lawyers, by the way, so we all know how likely it is that they can easily achieve some sort of mutual consensus and compromise.

Also Read: Right to Privacy: Why Do We Need 9 Judges To Debate It?

Jokes apart, this is a complex matter and it is quite possible that there will be serious differences of opinion on many of the big issues, including the main question of whether privacy is a fundamental right or not. Just see what happened in the triple talaq case yesterday, where the judges, even those who held the majority view, ended up disagreeing with each other on big issues.

Splits among the judges could be anywhere from 8-1 to 6-3 to 5-4. Regardless of what the splits are, the precedential value of the case will still be of a nine-judge bench. This means that a six-judge won’t be able to overrule it in the future even if the judgment comes down to a 5-4 split.

Not Fun Possibility 2 - Separate Opinions

Even if all the judges agree that privacy is a fundamental right, they could still disagree on how they got to that conclusion. These differences of opinion could relate to which Article of the Constitution privacy falls under, which would then impact what kind of restrictions it could be placed under, which would then affect the way in which citizens can rely on this right.

This may seem like a nitpicky point, but it could have severe consequences. To take the triple talaq case example again, the majority view consisted of separate but concurring opinions. But while one of those opinions was based on how triple talaq was unconstitutional, the other was based on how it was un-Islamic. While the end result was that triple talaq was struck down, the finding that it was unconstitutional is not binding.

For privacy, the biggest issue that separate opinions could throw up is the restrictions that the government will be permitted to place on the right to privacy; that is, how much the government will be allowed to shrink individual privacy rights. If privacy is located only in Article 21, much of the shrinking will be permissible, including a lot of the ways in which Aadhaar is currently being utilised.

But if it is located in Article 19, then only limited restrictions can apply, such as national security, public order, etc, meaning that individual privacy rights can be largely upheld.

Not Fun Possibility 3 - Unclear Judgment

The issues in this case are extremely nuanced and complex, and while the judges can be expected to have comprehended these, passing judgment and making this clear to the average person is not necessarily easy.

Biggest risk to the judgement will be it's comprehension of privacy. The clearer the better. Expecting separate opinions by judges.

— Apar (@aparatbar) August 23, 2017

Given how nuanced some aspects of the judgment will have to be, for instance on how privacy will need to be balanced against public welfare, it is entirely possible that there will be ambiguities which the government will look to capitalise on so that it can keep extending the Aadhaar programme.

And that’s not even considering the further implications that such nuances could have, including for campaigns such as the decriminalisation of homosexuality.

May the Force Be With Us All

Beyond a point, there’s not much else we can do but hope for the best. That the judgment will be clear and unambiguous, that there is a coherent majority judgment even if made up of separate opinions, and that it isn’t one that grants a right that is too diluted to be of any real use.

And that the Night King does fail to cross the Wall since he died without Aadhaar.

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