The Aadhaar case
The most obvious impact of the privacy judgment will be on the Aadhaar case, which will be heard by a bench of three judges soon. The finding of the judgment is that that privacy can be encroached upon by the state a) only by law, b) for a legitimate state interest, c) in a proportional manner.
First, most of the data was collected by the UIDAI and most Aadhaar cards were issued prior to the law passed in March 2016 for collection of such data viz., the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 ("Aadhaar Act, 2016"). The collection of personal and biometric information of individuals before March 2016 without the authorisation of law is very likely to amount to an impermissible breach of the right to privacy subsequent to the nine-judge judgment, putting the process of data collection—which is the basis of Aadhaar—under threat. If the Aadhaar Act 2016 is declared as unconstitutional on the ground that it could not have been passed as a finance bill, then data collected subsequent to the enactment will also be illegal.
Subsequent to the judgment, at best the state can carry out such intrusive exercises even with the backing of a law, only in respect to specific individuals, where there is legitimate state interest...
Second, the whole process of making Aadhaar mandatory for each and every activity of a person, such as banking, obtaining an electricity or telephone connection, school admissions, death certificates, through executive notifications that do not have the backing of any law will also likely to fall foul of the nine-judge ruling.
Third, any attempt to seed the Aadhaar number with all interactions of a person with the state, which will allow the state to have a bird's eye view of the citizen and his/her activities, will amount to profiling of the population by the state, which is not permissible under the judgment. It has been observed in the judgment:
"[I]ndividually, these information silos may seem inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health, hobbies, sexual preferences, friendships, ways of dress and political affiliation. In aggregation, information provides a picture of the being: of things which matter and those that don't, of things to be disclosed and those best hidden."
Thus, subsequent to the judgment, at best the state can carry out such intrusive exercises even with the backing of a law, only in respect to specific individuals, where there is legitimate state interest, such as a national security (say, regarding a terror suspect). Such an exercise will require warrants under the law.
Fourth, the statutorily backed linking of PAN with Aadhaar that had been approved as non-violative of Article 14 in the Binoy Visam judgment in July 2017 is now suspect again for a host of different reasons. The 1996 McDowell judgment that held that a statute cannot be struck down solely on the ground of perceived arbitrariness by the court has been expressly overruled in the triple-talaq judgment. The Binoy Visam judgment had relied upon McDowell to read Article 14 in a limited manner and now that the base of that judgment is gone, the whole analysis of on Article 14 in Binoy Visam needs revisiting. Second, in the Binoy Visam judgment the usefulness of linking PAN with Aadhaar was taken as a given by the court, even though the Union of India failed to explain as to how exactly linking of PAN with Aadhaar would improve tax compliance. Under the test envisaged in the privacy judgment, legitimate state interest will have to proven with actual material and the method adopted will also have to be shown to be proportional.
Under the test envisaged in the privacy judgment, legitimate state interest will have to proven with actual material and the method adopted will also have to be shown to be proportional.
Justice Dr. Chandrachud (endorsed by Justice Kaul) advocates the formulation of a statutory data protection regime, cautioning that the data which the state has collected:
"...has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the state."
Justice Kaul adds:
"An individual has the right to control one's life while submitting personal data for various facilities and services. It is but essential that the individual knows as to what the data is being used for with the ability to correct and amend it."
The ambiguity around the identity of "enrolling agencies" appointed by the UIDAI under the Aadhaar Act, the ability of the UIDAI to engage private entities "to establish and maintain the Central Identities Data Repository[i] and to perform any other functions as may be specified by regulations", the government's insistence on the mandatory linkage between Aadhaar and every aspect of private and public life (despite the alleged basis of Aadhaar being that it is a "condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India"[ii]) are only some of the provisions and principles that will need revisiting on the thresholds identified above.
Right to make choices
The judgment recognises that the ability to make choices is itself an aspect of the right to privacy, which in turn includes the right to choose the food and drink which one consumes. Justice Chelameswar notes:
"I do not think that anybody in this country would like to have the officers of the State intruding into their homes or private property at will or soldiers quartered in their houses without their consent. I do not think that anybody would like to be told by the State as to what they should eat or how they should dress or whom they should be associated with either in their personal, social or political life."
Those challenging the ban on consumption of beef imposed by the state of Maharashtra and the ban on alcohol imposed by state of Bihar will now be armed with brand new weapons (both these cases are currently pending in the Supreme Court).
The judgment recognises that the ability to make choices is itself an aspect of the right to privacy, which in turn includes the right to choose the food and drink which one consumes.
Justice Chandrachud's remark, "The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world" and Justice Bobde's observation that "Article 28(3) expressly recognizes the right of a student attending an educational institution recognized by the state, to be left alone. Such a student cannot be compelled to take part in any religious instruction imparted in any such institution unless his guardian has consented to it" are both independently powerful tools to counter efforts by state actors, including schools, to impose majoritarian religious and cultural practices on adults and children in various forms.
Criminalisation of homosexuality and minority rights
The judgment of Justice Chandrachud, supported by the judgment of Justice Kaul, has effectively held that Section 377 in so far as it criminalises homosexual acts between consenting adults violates their right to privacy. Justice Chandrachud observes:
"[T]he chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one's sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy—dignity based claims of LGBT persons on this aspect."
This reasoning will be a very strong ground in the pending curative petition in Koushal v. Naz Foundation to strike down Article 377.
(On a quick aside, Justice U C Banerjee evolved the concept of curative petitions in Rupa Ashok Hurra vs. Ashok Hurra and Anr.in 2002, by ruling that in order to prevent abuse of its process and to cure gross miscarriage of justice, the Supreme Court may reconsider its judgments, even after the rejection of a review petition, in exercise of its inherent powers.)
The acknowledgement that the right to privacy includes the right to be left alone in such places [hotels and the like] finds express favour with Justice Bobde...
Justice Chandrachud's rejection of the application of a de minimis threshold to the evaluation of fundamental rights of minorities as adopted in Koushal is an approach that is bound to equally apply to privacy rights of all minorities.
A passing remark by Justice Bobde makes for interesting reading. It is well documented that sexual minorities are often attacked on flimsy grounds of "obscenity" in a public place through the vehicle of "raids" in hotels etc. despite the fact that a hotel room does not in fact qualify as a "public place". The acknowledgement that the right to privacy includes the right to be left alone in such places finds express favour with Justice Bobde who finds:
"...a conglomeration of individuals in a space to which the rights of admission are reserved – as in a hotel or a cinema hall –must be regarded as private. Nor is the right to privacy lost when a person moves about in public. The law requires a specific authorization for search of a person even where there is suspicion."
An observation that is arguably valuable to keep handy for use against law enforcers with no appreciation of the law.
Likewise, Justice Nariman's list of examples of the right to privacy includes the right of same sex couples to marry, a powerful tool in the fight for self-determination of sexual minorities in India.
Section 375 of the IPC and the marital rape exception
It is rare to see a judgment involving the interpretation of a Constitutional right that includes feminist critiques of the majoritarian interpretations of privacy. Justice Chandrachud articulates his concern over the use of privacy as "a veneer for patriarchal domination and abuse of women." He notes:
"Patriarchal notions... are used as a shield to violate core constitutional rights of women based on gender and autonomy. As a result, gender violence is often treated as a matter of 'family honour' resulting in the victim of violence suffering twice over—the physical and mental trauma of her dignity being violated and the perception that it has cause an affront to 'honour'. Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets."
The judgment goes on to say:
"(T)he intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual."
The Delhi High Court is currently hearing three petitions that have been were filed against the Union of India by the RIT Foundation, the All India Democratic Women's Association (AIDWA) and marital rape victim Khusboo Saifi, which challenge the second exception to Section 375 of the Indian Penal Code, on the ground that by advocating active discrimination against married women, it violates Articles 14, 15, 19 and 21. It is fervently hoped that this decision will also play its part in paving the way for striking off this discriminatory and cruel exception.
For the moment, [the judgment] gives profound hope to all those who believe in rule of law as opposed to rule of men.
Overall, the judgment is one of the most progressive pronouncements in the last few decades. That fact that it is a unanimous decision by a bench of nine judges of the highest court means that it is bound to have far-reaching consequences. The exact impact will, of course, depend on how the judgment is applied by smaller benches of the Supreme Court and various high courts in respect of actual disputes that come before them. For the moment though, it gives profound hope to all those who believe in rule of law as opposed to rule of men.
[i] Section 10 of the Aadhaar Act.
[ii] Section 7 of the Aadhaar Act.