Lawyers inside the Supreme Court complex, in New Delhi, India. (Source: Supreme Court of India Website)

The Privacy Judgement: An Institutional Response

It is a statistical exception to have a unanimous 9:0 decision on reference. I cannot readily recall such an instance earlier, on a bench strength of nine. One remembers a wafer-thin majority in Kesavananda Bharati, where Justice Khanna's opinion tilted the scales. So also, the NJAC and most recently, the Triple Talaq decisions have found a sharp difference between the majority and minority views.

Not only is this statistically rare, but a unanimous conclusion on a matter such as the present one involving an interpretation of Part III of the Constitution is a telling symbolism. A posture that the Supreme Court is unequivocal on certain fronts, and that the executive must factor in the court's jurisprudential bent before taking its positions. In that sense, this is more than a judgement - it is an institutional response. Take, for example, this observation at para 126: ‘The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion’. This elevates the discourse from moral policing to constitutional morality.

It was unsettling to see that the Union actually contended that the right to privacy was not fundamental in nature (though it did back-track partially towards the conclusion of the hearing). Its stand has been found by the court to be ‘elitist’. There were only two plausible outcomes to this case - one, as now arrived at. And the other that the right to privacy remained unstated in explicit terms and left to Parliament to introduce by formal amendment to the Constitution. Surely it was untenable for a democracy such as ours to expect the third and most hardline result - a pronouncement that there is no right to privacy at all.

It was reassuring to find that some States (such as Karnataka) duly yielded the first position - of privacy being fundamental to our rights discourse - of course, subject to such restrictions as may be reasonably necessitated, as is the case with all fundamental rights.

Absolutism is fragile ground for any Constitution to be on.

Even if one looks at the previous judgements in MP Sharma and Kharak Singh that now stand overruled on the point, they only went so far as to state that privacy is not expressly recognized as part of Article 21 of the Constitution (unlike the 4th Amendment to the American Constitution) and that the court would not import the right into Part III by judgement. This was a literal, positivist reading of the text. The decisions did not proceed to hold that there is no right to privacy whatsoever (as in common law) but desisted from declaring it as a part of the right to life or otherwise within the reach of the fundamental rights chapter.

The effects of the judgement in the Justice Puttaswamy case will now be tested and felt in succeeding cases where smaller benches will apply the ratio to relevant acts and actions of the State. The point to be emphasized here is that State inaction going forward with respect to privacy will be at an equal if not higher scrutiny than its actions.

The onus on the State now is not merely to ensure it does not violate the right to privacy that its citizens enjoy, but to take positive steps to protect this right from infringement, by non-state actors.

The State must not just steer clear of unreasonable abridgement of the right by statute, but actively protect and enrich this right by a wholesome data protection law.

The most direct outcome of the creation, nay recognition, of this right is the right to enforce it against the State. The Aadhaar dispute will now be decided, inter alia, not merely on whether the law is a reasonable inroad into the right to privacy, but whether the 2016 Act and its attendant apparatus do enough to protect the privacy of its subjects. This is an audit the State must now carry out – here and in all other cases involving this new-found right - to ensure that its legislative and other endeavours preserve privacy in letter and spirit.

Incidentally, Governments too are at the receiving end at times in this context.

The Official Secrets Act, 1923 is, in a sense, the recognition of the right of privacy of the State. It is diluted partly by the Right to Information Act, 2005 - a constitutional exception to the State's right to keep things to itself. Extra-constitutional exceptions occur by way of political espionage, an instance of which was the alleged 'bugging' of a former finance minister's office. This gamesmanship becomes relevant when we look at the legal regime around surveillance. Indeed, the Indian Telegraph Act, 1885 and dicta of the courts (PUCL and others) provide for checks and balances when it comes to, say, phone-tapping or interception of messages. But what of the fact that intelligence agencies in India are outside the realm of legislative sanction? The instrumentalities most involved in 'information gathering' find themselves sans any formal legitimacy, in that the IB, RAW, NTRO, and ARC are not established by any Act of Parliament (nor are they constitutional bodies).

As such, the right to privacy is going to find itself entwined with an intelligence jurisprudence that is still many steps behind. The Universal Declaration of Human Rights affords protection against ‘arbitrary interference’ with one’s privacy, which covers the right to not have oneself searched, detained, questioned or surveilled without the mandate of law. The fundamental right to privacy in India now must step up to this universal position for it to be regarded as a vibrant public right.

At a webinar I spoke at on 'The First 100 Days of the Government', I had said that while (healthy) political assertiveness could be expected from the new NDA government, one would need to closely watch its role when it came to its cultural influences. Over the months, the stand of the government on food, language, religion and the like has been in sharp focus. The single most sumptuous part of the privacy judgement is its observations on matters such as these. More particularly, the finding of the bench that the reasoning in Koushal - to the extent it treats sexual minorities as invisible minorities from a constitutional perspective - is palpably flawed. The court has categorically held that sexual orientation is integral to the right to privacy and dignity.

Though the bench was not directly dealing with the vires of section 377 of the Indian Penal Code, 1860 its recognition of privacy as a fundamental right and its displacement of the basic premise of Koushal would mean that the challenge to section 377 is now wide open.

After all, the Delhi High Court in Naz Foundation had based its reading-down of the provision substantially on a privacy platform, that is – consenting homosexual adults in private do not commit a criminal act. This interpretation has received a shot in the arm from the present judgment.

Finally, the privacy judgement marks a transcendent moment in the constitutional graph of the Indian Supreme Court - not just for what it decides, but for its timing and force. Its pronouncement, alongside the Triple Talaq judgement in the same week, suggests that the Supreme Court is truly supreme (though not infallible) when it is seized of weighty legal questions – a step towards its coveted avatar of being a pure constitutional court. The majority view in ADM Jabalpur is rightfully relegated to the graveyard of constitutional history. The Supreme Court now carries a buoyancy that was due.

Aditya Sondhi is a Senior Advocate and is presently the Additional Advocate General for Karnataka. The views expressed are personal.

The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.

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