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A fundamental right to privacy — The complete story of how we got it

The 9-0 decision of the Supreme Court of India on August 24, 2017 unequivocally held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”.

This is the story of how we got here.

George Orwell’s dystopian novel Nineteen Eighty Four begins by introducing a poster with an enormous face with the caption ‘Big Brother is watching you’. Orwell, who wrote the epic novel in 1949, described with great detail the elements of a totalitarian regime. Its primary tool was mass surveillance. Perhaps it was a similar premonition that motivated Shyam Divan to submit before a bench of the Supreme Court on July 7, 2017 that India is “creeping towards becoming a concentration camp and a totalitarian state.”

Appearing for the petitioner in Justice K.S. Puttaswamy and Ors. v. Union of India and Others, W.P.(C) 494/2012 (“the Aadhar case”), Mr. Divan argued that “the policy to make Aadhaar mandatory for availing benefits of all welfare schemes invades upon the right to privacy of a citizen…..” Mr. Divan has, since 2012, patiently argued before several benches, that compelling a citizen to part with their biometric information is a serious impediment on an individual’s ‘right to privacy’, which is protected by Article 21 (protection of life and personal liberty) of the Constitution.

The Union of India, armed with two decisions of the Supreme Court – the 8-judge bench decision in M.P. Sharma v. Satish Chandra, 1954 SCR 1077 and the 6-judge bench decision in Kharak Singh v. The State of U.P., 1964 (1) SCR 332 – time and again refuted Mr. Divan’s claim that such a ‘right to privacy’ exists.

Kharak Singh and M.P. Sharma

Gopal Subramanium (left) and Shyam Divan appeared for the petitioners.

In MP Sharma, the offices of some companies were searched pursuant to a search warrant and various documents were seized. The search and seizure was challenged for violating Article 20(3), which provides that ‘no person accused of any offence shall be compelled to be a witness against himself’. After analysing American jurisprudence under the Fourth Amendment to the United States Constitution (protection against unreasonable searches and seizures), the Indian Supreme Court held that the Constitution makers in India have ‘thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the fourth amendment.’

In Kharak Singh, the Court dealt with an Article 21 challenge to the Uttar Pradesh Police Regulations, providing for secret picketing, domiciliary visits, periodical enquiries, reporting of movements and collection of records of history sheeters. While dealing with the provision regarding shadowing of history sheeters, the Court held that “right to privacy is not guaranteed under the Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which the privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

In early 2017, Mukul Rohtagi, who was the Attorney General at that time, forcefully stated during one of the hearings that the “concept of absolute right over one’s body was a myth”. Mr. Divan however, relentless in his submissions, maintained that several smaller benches of the Supreme Court had, since the 1970s, continuously held that the right to privacy was embedded in Article 21.


Gobind, Selvi, and others

In Gobind v. State of Madhya Pradesh, 1975 2 SCC 14, the petitioner alleged, before 3 judges of the Supreme Court, that there had been a violation of his privacy because the police opened a history sheet against him, put him under constant surveillance, and subjected him to domiciliary visits and secret picketing. The Court held that although Kharak Singh refused to declare privacy as a fundamental right, the right is an essential ingredient of personal liberty. Referring to the American judgments in Griswold v. Connecticut (1965)  and Roe v. Wade (1973), it was held that “privacy primarily concerns the individual and relates to and overlaps with the concept of liberty”. Mindful of the fact that there are serious problems of defining the essence and scope of the right, the Court held that “any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing.” In conclusion, the Court declared that the right will necessarily have to “go through a process of case by case development” and if a court “does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State interest.”

In Selvi v. State of Karnataka, (2010) 7 SCC 263, three judges of the Supreme Court dealt with the validity of narco-analysis, polygraph tests, and the “brain electrical activation profile” test. The challenge was based on Articles 20(3) and 21 of the Constitution. Holding all three tests to be unconstitutional, the Court held that the “understanding of the ‘right to privacy’ should account for its intersection with Article 20(3) and the importance of personal autonomy must be recognised in aspects such as choice between remaining silent and speaking. An individual’s decision to make a statement is the product of private choice and there should be no scope for any other individual to interfere with such autonomy.”

K.K. Venugopal (left) succeeded Mukul Rohatgi as the Attorney General for India.

Several other judgments have also held in favour of the right to privacy. R. Rajagopal v. State of Tamil Nadu, 1994 6 SCC 632 (2 judges), PUCL v. Union of India, 1997 1 SCC 301 (2 judges), Mr. X v. Hospital Z, 1998 8 SCC 296 (2 judges), and Ram Jethmalani v. Union of India, 2011 8 SCC 1 (2 judges), have all held that the right to privacy is a part of the right to life and personal liberty enshrined in Article 21.

The American right to privacy

In most cases, the Indian Supreme Court has relied extensively on the American law on privacy, a discussion of which must necessarily begin with the 1890 Harvard Law Review article by Louis Brandeis and Samuel Warren that first articulated the ‘right to privacy’. Motivated by technological inventions such as instant photography and widespread circulation of newspapers, the authors discussed the need for the common law to adapt to these changes by recognising a ‘right to privacy’. According to Brandeis and Warren, “recent inventions and business methods call attention to the next step which must be taken for the protection of the person, and for securing to the individual … the right ‘to be let alone.” The authors concluded that the harms of privacy invasion fall into one of four types: (a) intrusion into one’s private life and affairs; (b) public disclosure of embarrassing private facts; (c) unwanted publicity of private individuals; and (d) misappropriation of a name or likeness for financial advantage.

While Brandeis and Warren spoke of a right to privacy in common law, seventy five years later, the Supreme Court of the United States in Griswold v. Connecticut held that the State’s ban on the use of contraceptives violated the right to marital privacy. Justice William O. Douglas writing for the majority held that the right to privacy emanates from the penumbras of the American Bill of Rights.

“Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment, in its prohibition against the quartering of soldiers “in any house” in time of peace without the consent of the owner, is another facet of that privacy. The Fourth Amendment explicitly affirms the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fifth Amendment, in its Self-Incrimination Clause, enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

In Roe v. Wade, the US Supreme Court, dealing with the ‘right to abortion’, held that although the U.S. Constitution does not explicitly mention any right of privacy, the Court had, in a line of decisions,  recognised that a right of personal privacy, or a guarantee of certain areas or zones of privacy, did exist under the Constitution. The Court went on to hold that the only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty are included in this guarantee of personal privacy. The Court found that the right to privacy is included in the Fourteenth Amendment’s concept of personal liberty and restriction against State action and concluded that this right is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.

Louis Brandeis (left) and Samuel Warren wrote the seminal article on the law of privacy.

The United States Supreme Court, in a series of cases, has held that the ‘right to privacy’ can be extended to activities related to marriage (Loving v. Virginia (1967)), contraception (Eisenstadt v. Baird (1972)), procreation (Skinner v. Oklahoma (1942)), family relationships (Prince v. Massachusetts (1944), and child rearing and education (Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923)).

Before proceeding further, I must refer to the American debate on the current status of the right to privacy. In Lawrence v. Texas (2003), the U.S. Supreme Court sought to examine whether criminal convictions for adult consensual sexual intimacy in the home violate vital interests in liberty and privacy. In striking down the sodomy law, the Court held that it is “liberty that protects the person from unwarranted government intrusions into dwelling or other private places” and that “liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct”. Jamal Greene, a professor at Columbia Law School, in his 2010 Article on ‘the so-called right to privacy’ has examined the development of American law on privacy and concludes that U.S. Supreme Court has moved from privacy to liberty as a constitutional basis for the freedom to make fundamental life decisions and that retiring the right to privacy will have salutary effects.

International conventions

International conventions have also expressly recognised the right of privacy. Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Convention on Civil and Political Rights both provide that “no one shall be subject to arbitrary interference with his privacy……”. The European Convention on Human Rights provides in Article 8 that “everyone has the right to respect for his private and family life, his home and his correspondence” and that “there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” The Charter of Fundamental Rights of the European Union contains a specific Article on “respect for private and family life” (Article 7) and for “protection of personal data” (Article 8). In the United Kingdom, Article 8 of the Human Rights Act 1998 provides for the right to respect for private and family life.

It was in this backdrop that the Supreme Court bench in the Aadhar Case, on July 18, referred the matter to a bench of 9 judges to decide the correctness of the decisions in MP Sharma and in Kharak Singh.

Over a period of 6 days, the Court grappled with many tricky issues – the meaning and scope of the right to privacy, its limitations, and the consequences of a holding that such a right exists. The petitioners arguments were led by Gopal Subramanium.

Privacy in the expanded Article 21

Mr. Subramanium pointed out that the decisions in MP Sharma and Kharak Singh sought to interpret fundamental rights on the basis of the Court’s decision in A.K. Gopalan v. State of Madras, 1950 SCR 88, which had held that Articles 19 and 21 are mutually exclusive and that the concept of substantive due process was not recognised by the Indian Constitution. That was no longer good law. He submitted that A.K. Gopalan stood overruled by R.C. Cooper v. Union of India, (1970) 1 SCC 248 and Maneka Gandi v. Union of India, (1978) 1 SCC 248, which held that “the expression personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man …” and the attempt of the Court should be to expand the reach and ambit of the fundamental rights rather than limit their meaning and content by a process of judicial construction.

On the meaning of privacy, Mr. Subramaniun sought to explain that the concept of privacy is embedded in all aspects of life and liberty and that liberty could not be exercised without privacy. Mr. Sorabjee, the former Attorney General for India, appearing for one of the petitioners, elaborated that although the right to privacy is not mentioned anywhere in the Constitution, it does not mean that it does not exist and it can be deduced from other fundamental rights.

The arguments for the Union of India were led by K.K. Venugopal, the newly appointed Attorney General for India, who chose to take a more nuanced stance compared to his predecessor. Mr. Venugopal argued that the right to privacy, if at all, can be only among the varied rights falling under the umbrella of the right to personal liberty, and would be species of the larger genus, that is, liberty. He pointed out that if the right to privacy is separately examined, it would consist of a large number of different and independent rights and all aspects of privacy will not automatically qualify as fundamental rights. Mr. Venugopal sought to emphasise that in a country like India, where there is a huge section of population that lives below the poverty line, a claim to privacy cannot prevent welfare measures by the State traceable to the right to life under Article 21. Privacy, according to him, is too vague and amorphous a concept, and cannot be held to be a fundamental right.

What 9 judges of the Supreme Court said

The Supreme Court’s unanimous verdict is truly a watershed moment and will have far reaching implications for the people of India. The judges reinforced the strength of India’s Constitution by painstakingly detailing its core values.

The 9 judges of the Supreme Court of India who returned a unanimous verdict on August 24, 2017.

Six separate opinions were delivered. MP Sharma and Kharak Singh were overruled. All the opinions recognised the difficulty of defining the exact meaning of ‘privacy’ and held that its facets can only be developed on a case to case basis. The judges however, attempted to outline certain basic aspects.

Justice Chandrachud, writing for himself, Chief Justice Kehar, Justice Agrawal, and J. Nazeer, held that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” According to him, “privacy also connotes a right to be left alone” and it “safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life.”

According to Justice Chelameshwar, the right to privacy, which has both positive and negative contents, consists of three facets — repose, sanctuary, and intimate decision.

Justice Nariman held that a fundamental right to privacy would cover at least three aspects: (a) privacy that involves the person, that is, 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; (b) informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore recognises that an individual may have control over the dissemination of material that is personal to him, and (c) the privacy of choice, which protects an individual’s autonomy over fundamental personal choices.

All the opinions also emphasised the importance of informational privacy in the digital age. Justice Kaul in an opinion dealing almost exclusively with privacy in the digital age underscores the capacity of non-State actors to invade the home and privacy.

“In this digital age, individuals are constantly generating valuable data which can be used by non-State actors to track their moves, choices and preferences……‘Uber’ knows our whereabouts and the places we frequent. ‘Facebook’ at the least, knows who we are friends with. ‘Alibaba’ knows our shopping habits. ‘Airbnb’ knows where we are travelling to’ and  ‘there is an unprecedented need for regulation regarding the extent to which such information can be stored, processed and used by non-state actors.”

All 9 judges were unanimous also in their conclusion that the right to privacy is not absolute. The opinions require restrictions to be tested using the Article 21—  just, fair and reasonable — standard.

According to Justice Chandrachud, invasion of privacy requires a law that meets the requirement of “(i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

In what appears to be a small victory for the government, ‘legitimate aim’ has been held to include programs which provide benefits for the impoverished and marginalised sections of society. Justice Chelameshwar, in addition to the Article 21 tests, states that there may be certain privacy claims that deserve strict scrutiny (a concept imported from US jurisprudence). Justice Bobde adds that since privacy is located in every constitutional freedom, its interference must be tested against whichever guarantee, whose enjoyment is curtailed.

Among its other far reaching consequences, many opinions of the Supreme Court will have to revisited, the first of which will almost certainly be Suresh Koushal v. Naz Foundation, 2014 1 SCC 1, which upheld Section 377 of the Indian Penal Code, a provision that criminalises sexual activities “against the order of nature”. In fact, Justice Chandrachud and Justice Kaul have specifically disagreed with its findings. Justice Chandrachud has also held that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution.

Rohit Bhat is an advocate practising at the Supreme Court of India.

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