India’s Supreme Court decision: Privacy is a Fundamental Right
by Inayat Chaudhry
On August 24, 2017, in a landmark ruling, India’s Supreme Court declared that privacy is a fundamental right under the constitution. At the same time, it also held that privacy is not an absolute right. The decision was a result of a petition which challenged the constitutionality of the “Aadhaar” card, a biometric identity scheme which assigns every Indian citizen with a unique identification. The court specifically noted that its decision was premised on considering the advent of technology and the way an interconnected world affects an individual’s liberty. And so, the court described its goal as parsing the constitution to determine whether it protects privacy as an elemental principle, while being cognizant to the needs, opportunities, and dangers posed to one’s liberty in a digital world.
The Right to Privacy – Case Law in India
India has a long history of cases which has dealt with this question. The Attorney General of India argued that two decisions – M P Sharma v. Satish Chandra, District Magistrate, Delhi (“Sharma”) and Kharak Singh v. State of Uttar Pradesh (“Singh”) – contained observations that the Indian Constitution does not specifically protect the right to privacy. On the other hand, the petitioners argued that these two cases were founded on principles expounded in A K Gopala v. State of Madras (“Gopalan”), which was later held not to be good law in Rustom Cavasji Cooper v. Union of India (“Cooper”). Additionally, the latter party also argued that in Maneka Gandhi v. Union of India (“Maneka”), the minority judgment in Singh was specifically approved of and the decision of the majority overruled.
With this case law as backdrop, a Constitution Bench held that it was essential to determine whether there is a fundamental right of privacy under the Constitution because of the unresolved contradiction in the law. And that is how this decision came to be. In deciding the case, the Supreme Court addressed the aforementioned cases. In Singh, the majority decided that “our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.” In saying so, the court placed reliance on Justice Frankfurter’s words in Wolf v. Colorado, i.e., “The security of one’s privacy against arbitrary intrusion by the police … is basic to a free society…” The Supreme Court in this case noted that while the majority in Singh relied on Justice Frankfurter’s observations regarding the sanctity of home as part of ordered liberty, it declined to recognize a right of privacy as a constitutional protection. On the other hand, the dissenting judge in Singh recognized a protected right to privacy under the constitution, considering it as an ingredient of personal liberty.
In Sharma, the court addressed whether there was a contravention of Article 20(3), which mandates that no person accused of an offense shall be compelled to be a witness against himself. In this case, the Court relied on the ruling laid down by Boyd v. United States, a case from 1886 which held that obtaining incriminating evidence by an illegal search and seizure violated the United States’ Constitution’s Fourth and Fifth Amendments. Accordingly, Sharma originally held that in the absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy cannot be read into the Indian Constitution. The Supreme Court in the present case noted that the Sharma court failed to address whether a constitutional right to privacy is protected by other provisions contained in the fundamental rights including among them, the right of life and personal liberty under Article 21and Article 19 of the Indian Constitution.
In Gopalan, the Court construed the relationship between Articles 19 and 21 to be one of mutual exclusion. Therefore, the seven freedoms of Article 19 were not subsumed in the fabric of life or personal liberty in Article 21. Thus, under Gopalan, free speech and expression were guaranteed by Article 19(1)(a) and hence excluded from personal liberty under Article 21. The dissent in this case however adopted the view that fundamental rights are not isolated but protected under a common thread of liberty and freedom. In Cooper, the theory that fundamental rights are isolated compartments was overruled. The Court in Cooper held instead, “[t]he enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.” Later, the overruling of the Gopalan doctrine in Cooper was revisited in Maneka, which held that “[t]here can be no doubt that in view of the decision of this Court in R.C. Cooper v. Union of India…the minority view must be regarded as correct and the majority view must be held to have been overruled.”
The Supreme Court in this case noted that following the decision in Maneka, the established constitutional doctrine is that “personal liberty” mentioned in Article 21 covers a variety of rights, some of which have been raised to the status of distinct fundamental rights and given additional protection under Article 19. Thus, the court declared that the jurisprudential foundation which held the field during Sharma and during Singh has given way to what is now a settled position in constitutional law. First, fundamental rights emanate from the basic notions of liberty and dignity and the enumeration of some facets of liberty as distinctly protected under Article 19 does not take away from Article 21’s expansive ambit. Second, the validity of a law which infringes fundamental rights has to be tested on the basis of its effect on the guarantees of freedom. And third, the requirement of Article 14 that state action must not be arbitrary and must fulfil the requirement of reasonableness imparts meaning to the constitutional guarantees in Part III.
The origins of privacy and how the privacy doctrine evolved in India
After revisiting the case law on privacy, the Supreme Court looked into the origins of privacy, natural and inalienable rights, comparative law on privacy from the UK, US, South Africa, Canada, and the EU, along with a focus on the Indian Constitution, how the privacy doctrine evolved in India, and India’s commitments under International law among other things. After recounting Aristotle’s learnings, William Blackstone’s Commentaries on the Laws of England, John Stuart Mill’s “On Liberty,” James Madison’s Essay on Property, and Samuel D Warren’s and Louis Brandeis’ “The Right to Privacy” Harvard Law Review Article from 1890, the Indian Supreme Court noted that the texts had one thing in common, i.e., the basic need of every individual to live with dignity, be it during urbanization and economic development or during an age where technological change continuously “threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.” The Court also noted that the idea that individuals can have rights against the State that are prior to rights created by explicit legislation has been developed by Ronald Dworkin in “Taking Rights Seriously.” The Supreme Court then went on to delve into a case called “Gobind,” where the Court held that “[a]ny right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.” But the Supreme Court remained unimpressed with this line of thinking because it claimed that the judgment in Gobind did not contain a clear statement of principle by the Court of the existence of an independent right of privacy or of such a right being an emanation from explicit constitutional guarantees. The Supreme Court went on to perform a comprehensive analysis of precedent, spanning several judgments and eventually concluded that the constitutional right to privacy and its limitations have proceeded on a case to case basis, each precedent seeking to build upon and follow the previous formulations. The doctrinal foundation essentially rests upon the trilogy of Sharma –Singh – Gobind upon which subsequent decisions have contributed. Finally, the court concluded that the right to privacy in India had been traced in decisions which were decided in 1954, 1964, and 1975 respectively. More than 40 years have passed since the last decision and technology has led to unprecedented developments in today’s world. And the Supreme Court alluded to as much in its 547-page decision.
The Supreme Court’s Conclusions
In rendering its conclusion, the Indian Supreme Court revisited the five seminal cases –Sharma, Singh, Cooper, Maneka, and Gopalan. With respect to Sharma, it noted that the observation that privacy is not a right guaranteed by the Indian Constitution in Sharma is not reflective of the correct position and overruled it to the extent to which it indicates the contrary. It also held that Singh incorrectly held that the right to privacy is not a guaranteed right under our Constitution and overruled it to extent which it holds that the right to privacy is not protected under the Indian Constitution. Finally, it held that Singh’s reliance upon the majority decision in Gopalan is not reflective of the correct position in view of the decisions in Cooper and Maneka.
The Supreme Court declared that life and personal liberty are inalienable rights, and although not created by the Constitution, they are recognized by it as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within; that privacy is a constitutionally protected right which primarily emerges from the guarantee of life and personal liberty under Article 21 of the Constitution; that judicial recognition of the existence of a constitutional right of privacy is not an exercise in the nature of amending the Constitution; that privacy is the constitutional core of human dignity; that privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation and that it also connotes a right to be left alone; that the Supreme Court did not embark upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy; that privacy is not an absolute right, like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21; that privacy has both positive and negative content, where the former imposes an obligation on the state to take all necessary measures to protect the privacy of the individual and the latter restrains the state from committing an intrusion upon the life and personal liberty of a citizen; that decisions rendered by this Court subsequent to Singh, upholding the right to privacy will be read to the above principle; and that the Union Government needs to examine and put into place a robust regime for data protection to protect against dangers to privacy in the age of information.