29/08/2017 3:11 PM IST | Updated 30/08/2017 10:45 AM IST

The Right To Privacy Judgment Is A Righting Of History

Of historical decisions of Constitution benches and judicial courage.

Anindito Mukherjee / Reuters

This is the first installment of a two-part series on the "right to privacy" judgment of the Supreme Court of India.


There is much one has read and heard over the last four days on what is being dubbed as the "historical privacy judgment" in Justice K S Puttaswamy (Retd.) and ors. V. Union of India. Today, where more often than not meaningful intellectual conversations are invariably hijacked by social media trolls, we as lawyers find it fascinating how everyone around us is suddenly (and knowledgeably) talking of fundamental rights, the basic structure of the Constitution, Constitution benches and so on. As a result, the privacy judgment has a lot more broad-based following and comprehension than many of its equally important predecessors, which our piece must, therefore, begin with.

Why a nine-judge bench?

The first question one must address is why a nine judge bench was constituted. Any bench of at least five judges is required to decide any substantial question of law involving the interpretation of the Constitution – hence the bench deciding this case could theoretically have been of five judges. The original constitutional challenge to the Aadhar card scheme (which involved testing a government policy on the anvil of constitutional principles) was before a three-judge bench. However, the bench noted in its order of 11 August 2015 that the essential ground for challenging the norms being followed in the scheme is that they violated citizens' right to privacy.

Nariman, while discussing Fazl Ali's dissent in "Gopalan" remarks that the judge's foresight [in stating that fundamental rights cannot be compartmentalised] "simply takes our breath away."

Whether there was, in fact, such a right in the Constitution was not a straightforward answer as historically, different benches of the Supreme Court, when confronted with this question, had taken diametrically differing positions. In particular, M.P. Sharma v Satish Chandra, a 1954 decision by eight judges and Kharak Singh v State of UP, a 1964 decision by six judges had both held that the Constitution did not provide for the right to privacy, using the rationale adopted in A.K. Gopalan v State of Madras. The latter was a 1950 decision of a six-judge bench which was tasked with evaluating the constitutionality of the Preventive Detention Act. It refused to go beyond Article 22 of the Constitution which pertains to protection against arrest and detention by testing the law on the anvil of the fundamental right to life and liberty. It viewed the relationship between Articles 19 and 21 to be one of mutual exclusion and concluded that the seven freedoms in Article 19 (including Freedom of Speech, Expression and Livelihood) were not subsumed in the fabric of life or personal liberty in Article 21.

The method of interpreting fundamental rights as water-tight compartments was rejected by an 11-judge bench in R.C. Cooper v Union of Indiain 1970, which also took note of Justice Fazl Ali's celebrated dissenting opinion in Gopalan. The question that therefore arose was whether the law in M.P. Sharma and Kharak Singh's cases automatically became bad law if the tool of interpretation they used had been later overruled.

Several subsequent decisions by smaller benches that rejected the precedent value of M.P. Sharma and Kharak Singh and upheld the right to privacy did seem to think so, and yet a bench larger than M.P. Sharma's eight was needed to independently evaluate whether such a right in fact existed, without being bogged down by conflicting precedents.

Therefore, "institutional integrity" and "judicial discipline" required the setting up of a nine-judge bench to hear and deliver the now historical privacy judgment.

Other historically significant decisions on fundamental rights

In terms of historical significance, the privacy judgment joins the ranks of Kesavananda Bharati v State of Kerala, I.C. Golaknath v State of Punjab,Maneka Gandhi v. Union of India and Minerva Mills v Union of India.

[A]ll the judges were quite aware that the position they were taking in acknowledging a fundamental right to privacy would have a profound impact on the kind of country the Constitution envisions India to be.

The 703-page Kesavananda Bharati decision of 1973 (the ability to read and truly comprehend the full text of which used to be the established test to separate the nerds from the non-nerds in law schools) by a 13-judge bench of the Supreme Court is the product of the largest Constitution Bench set up till date, although the decision was split 7:6. The majority ruled in favour of the position that the basic structure of the Constitution cannot be changed by any law of Parliament and fundamental rights cannot be abrogated (although they may be subjected to abridgment under the principle of reasonable restrictions).

The decision followed (but suitably refined) the decision of the 11-judge bench in I.C. Golaknath v State of Punjabwhich in 1967 took the position that Parliament had no power to curtail fundamental rights. Justice Dr. D Y Chandrachud opines in the privacy judgment that the underlying principle of Justice Subba Rao's decision in Golaknath was that "every authority constituted by the Constitution is subject to it and functions within its parameters (and) one of the purposes of constraining governmental power was to shield the fundamental freedoms against legislative majorities."

In Maneka Gandhi v. Union of India, a seven-judge bench laid down the foundation for the linkage between the fundamental right against discrimination in Article 14 with Articles 19 and 21 of the Constitution. It observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment and hence the procedures laid down under the Passports Act which have an effect on a person's right to go abroad and hence impact their Right to Liberty under Article 21 must also answer the test of reasonableness and cannot be contrary to the principles of natural justice. It is now the position (following Maneka Gandhi) that the expression "personal liberty" 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.

[E]ach of the six judges has strongly affirmed that the Constitution envisages India to be a liberal democracy with severe checks on the power of the State.

In Minerva Mills v Union of India, Dr. Y V Chandrachud (CJ), speaking for a majority of 4:1 held that Articles 14 and 19 confer rights essential for the proper functioning of a democracy and withdrawing their protection by Constitutional amendment in favour of law that was purportedly for giving effect to the directive principles amounted to a violation of the basic structure as fundamental rights and directive principles ought to be balanced without giving one primacy over the other.

A historical summary of impactful Constitution Bench decisions will be incomplete without a mention of the rather infamous 1977 decision in ADM Jabalpur v Shivkant Shuklawhere four out of five judges upheld the government of the day's right to suspend the fundamental rights of citizens since Emergency had been declared in the country. The lone voice of dissent was by Justice H R Khanna, whose opinion that the Constitution did not permit right to life and liberty to be subject to executive decree is widely regarded as a milestone in the evolution of the Indian democracy. Needless to say, despite being the senior-most judge in the Supreme Court he was superseded for the post of Chief Justice by Justice M.H. Beg and as a result of this, he resigned from the court. Despite the wide ranging academic criticism of this judgment, and implied overruling inI.R. Coelho v. Union of Indiain 2007, it is the "privacy judgment" which has expressly overruled it.

Justice Nariman pays a moving tribute to the three great dissents, Justices Fazl Ali, Subba Rao and Khanna. In a rare example of emotion, Nariman, who is usually known for his clinically precise writing style and acerbic wit, while discussing Fazl Ali's dissent in Gopalan remarks that the judge's foresight "simply takes our breath away." In acknowledging Subba Rao's dissent in Kharak Singh, he humorously likens the majority judgment to the proverbial curate's egg: "good only in parts."

The "privacy judgment": A one-minute takeaway

It is quite clear from the privacy judgment that all the judges were quite aware that the position they were taking in acknowledging a fundamental right to privacy would have a profound impact on the kind of country the Constitution envisions India to be. Justice Nariman's summary states that in the Indian context, a fundamental right to privacy would cover at least the following three aspects:

  • Privacy that involves the person i.e. when there is some invasion by the State of a person's rights relatable to his physical body, such as the right to move freely;
  • Informational privacy which does not deal with a person's body but with their mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore, lead to infringement of this right; and
  • The privacy of choice, which protects an individual's autonomy over fundamental personal choices.

By writing their respective opinions in the manner that they have, each of the six judges has strongly affirmed that the Constitution envisages India to be a liberal democracy with severe checks on the power of the State. The judgments leave no doubt that attempts at turning India into some kind of an authoritarian system is not permitted under the Constitution. The manner in which these checks have been identified in the various opinions leaves open a whole range of possibilities of challenges to actions of successive governments.

Judicial courage

A discussion on the privacy judgment has to be underscored by an acknowledgement that it stands out not only for the high bar it sets academically and the robust law it lays down, but equally for its judicial integrity and courage. Its scathing critique of both the governmental stance as also erstwhile erroneous positions taken by the judiciary is as admirable as it is uncommon. It sets the tone of its difference of opinion with the Union's position with the remark:

"(A)n evaluation of the origins of privacy is essential in order to understand whether (as the Union of India postulates), the concept is so amorphous as to defy description. The submission of the government is that the Court cannot recognise a juristic concept which is so vague and uncertain that it fails to withstand constitutional scrutiny."

In rejecting the stand taken by the Union and some states that the right to privacy is a statutory right or a right under common law (and therefore cannot be elevated to the status of a fundamental right), the judgment accuses them of betraying "a lack of understanding why rights are protected in the first place" and underscores that the purpose of infusing a right with a constitutional element is to "provide it a sense of immunity from popular opinion."

[The] scathing critique of both the governmental stance as also erstwhile erroneous positions taken by the judiciary is as admirable as it is uncommon.

Justice Dr. D Y Chandrachud (writing on behalf of Chief Justice Khehar, Justices Agarwal, Nazeer and himself) resoundingly rejected the Attorney General's argument that the Right to Privacy is an elitist construct which "stands apart from the needs and aspirations of the large majority" with the observation that "the refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised though history to wreak the most egregious violations of human rights."

One cannot help but feel that he is commenting on the times rather than the immediate issue before him when he observes:

"[I]t is the right to question, the right to scrutinise and the right to dissent which enables an informed citizenry to scrutinise the actions of government. Those who are governed are entitled to question those who govern, about the discharge of their constitutional duties including in the provision of socio-economic welfare benefits. The power to scrutinise and to reason enables the citizens of a democratic polity to make informed decisions on basic issues which govern their rights. The theory that civil and political rights are subservient to socio-economic rights has been urged in the past and has been categorically rejected in the course of constitutional adjudication by this Court."

Equally, in the course of his critique of ADM Jabalpur, the judge notes:

"When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, of what was, but should never have been."

Overruling ADM Jabalpur, Justice Chandrachud observes:

"The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence...No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights...It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right."

Justice Kaul's words are less kind. In describing the decision as "an aberration in the constitutional jurisprudence of our country" he supports the "desirability of burying the majority opinion ten fathom deep, with no chance of resurrection."

Later, while deliberating on (and ultimately rejecting) the notion whether the right to privacy was expressly rejected by the founding "fathers" of the Constitution, Justice Chandrachud warns against adopting an approach that would constrict it to its "originalist interpretation" and thereby deprive it of its status as a living instrument and advocate the adoption of solutions that "continuously undergo a process of re-engineering", with these words of caution, "India's brush with a regime of the suspension of life and personal liberty in the not too distant past is a grim reminder of how tenuous liberty can be, if the judiciary is not vigilant."

[The judgment] underscores that the purpose of infusing a right with a constitutional element is to "provide it a sense of immunity from popular opinion."

They do not mince words in relation to Suresh Kumar Koushal v Naz Foundation either, in describing it as a "discordant note" and going on thereafter to make the now-epic remarks on how the purpose of elevating certain rights to the status of fundamental rights is to insulate them from the disdain of popular or legislative majorities and how "the test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection," especially when non-mainstream views, beliefs and ways of life of minorities constitute the main reason for their persecution. They expressly call out Justice Singhvi's classification of LGBT rights as "so-called rights", underlining that the rights of the LGBT community are not "so-called" but are

"[R]eal rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination."

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