My article 'The Hanson Card - Neither Necessary Nor Viable' in (2017) 14(6)
Privacy Law Bulletin questions the latest outbreak of enthusiasm for a ubiquitous national identity card, notably a revival of the 'Australia Card'.
It is thus interesting to see the resounding judgment by India's Supreme Court in
Justice K S Puttaswamy (Read) and Anor versus Union of India and Ors Writ Petition (Civil) No 494 of 2012, which articulates a strong right to privacy under that nation's constitution.
The judgment is at odds with the union (ie national) government's enthusiasm for the Aadhaar national identity registration regime as a solution to a wide range of perceived ills and with disregard at both the national and state levels of respect for sexual diversity.
The Supreme Court in its 547 page judgment [
PDF] states that
i) the decision in
M P Sharma which holds that the right to privacy is not
protected by the Constitution stands over-ruled;
ii) The decision in
Kharak Singh
to the extent that it holds that the right to
privacy is not protected by the Constitution stands
over-ruled;
iii) 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.
iv) Decisions subsequent to
Kharak Singh
which have enunciated the position
in (iii) above lay down the correct position in law.
Basis
The Court begins by stating
Nine judges of this Court assembled to determine whether privacy is a
constitutionally protected value. The issue reaches out to the foundation of a
constitutional culture based on the protection of human rights and enables this Court
to revisit the basic
principles on which our Constitution has been founded and their
consequences for a way of life it seeks to protect. This case presents challenges for
constitutional interpretation. If privacy is to be construed as a protected constitutional
value, it would
redefine in significant ways our concepts of liberty and the entitlements
that flow out of its protection.
Privacy, in its simplest sense, allows each human being to be left alone in a
core which is inviolable. Yet the autonomy of the individual is co
nditioned by her
relationships with the rest of society. Those relationships may and do often pose
questions to autonomy and free choice. The overarching presence of state and non-state entities regulates aspects of social existence which bear upon the freedom of
the individual. The preservation of constitutional liberty is, so to speak, work in
progress. Challenges have to be addressed to existing problems. Equally, new
challenges have to be dealt with in terms of a constitutional understanding of where
liberty places an individual in the context of a social order. The emergence of new
challenges is exemplified by this case, where the debate on privacy is being analysed
in the context of a global information based society. In an age where information
techn
ology governs virtually every aspect of our lives, the task before the Court is to impart constitutional meaning to individual liberty in an interconnected world. While
we revisit the question whether our constitution protects privacy as an elemental
principle, the Court has to be sensitive to the needs of and the opportunities and
dangers posed to liberty in a digital world.
A Bench of three judges of this Court, while considering the constitutional
challenge to the Aadhaar card scheme of the Union government noted in its order
dated 11 August 2015 that the norms for and compilation of demographic biometric
data by government was questioned on the ground that it violates the right to privacy.
The Attorney General for India urged that the existence of a
fundamental right of
privacy is in doubt in view of two decisions : the first
–
M P Sharma
v
Satish Chandra,
District Magistrate,
Delhi (“M P Sharma”)
was rendered by a Bench of eight
judges and the second, in
Kharak Singh
v
State of Uttar Pradesh (“Kharak
Singh”)
was rendered by a Bench of six judges. Each of these decisions, in the
submission of the Attorney General, contained observations that the Indian
Constitution does not specifically protect the right to privacy. On the other hand, the
submission of the petitioners was that
M P Sharma
and
Kharak Singh
were founded
on principles expounded in
A K Gopalan
v
State of Madras (“Gopalan”)
.
Gopalan,
which construed each provision contained in the Chapter on fundamental rights as
embodying a distinct p
rotection, was held not to be good law by an eleven
-
judge Bench in
Rustom Cavasji Cooper
v
Union of India (“Cooper”). Hence the
petitioners submitted that the basis of the two earlier decisions is not valid. Moreover,
it was also urged that in the seven-judge Bench decision in
Maneka Gandhi
v
Union
of India (“Maneka”), the minority judgment of Justice Subba Rao in
Kharak Singh
was specifically approved of and the decision of the majority was overruled.
While addressing these challenges, the Bench of
three judges of this Court took
note of several decisions of this Court in which the right to privacy has been held to
be a constitutionally protected fundamental right. Those decisions include :
Gobind
v
State of Madhya Pradesh (“Gobind”),
R Rajagopal
v
State of Tamil Nadu (“Rajagopal”)
and
People’s Union for Civil Liberties
v
Union of India (“PUCL”).
These subsequent decisions which affirmed the existence of a constitutionally
protected right of privacy, were rendered by Benches of a strength smaller than those
in
M P Sharma
and
Kharak Singh. Faced with this predicament and having due
regard to the
far-reaching questions of importance involving interpretation of the
Constitution, it was felt that institutional integrity and judicial discipline would require
a reference to a larger Bench. Hence the Bench of three learned judges observed in
its order
dated 11 August
2015:
“12. We are of the opinion that the cases on hand raise far reaching
questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including
that precious and inalienable right under Article 21. If the
observations made in
M.P. Sharma
(supra) and
Kharak Singh
(supra) are to be read literally and accepted as the law of this
country, the fundamental rights guaranteed under the Constitution
of India and more particularly right to liberty under Article 21 would
be denuded of vigour and vitality. At the same time, we are also of
the opinion that the institutional integrity and judicial discipline
require that pronouncement made by larger Benches of this Court
cannot be ignored by the smaller Benches without appropriately
explaining the reasons for not following the pronouncements made
by such larger Benches. With due respect to all the learned Judges
who rendered the subsequent judgments - where right to privacy is
asserted
or referred to their Lordships concern for the liberty of
human beings, we are of the humble opinion that there appears to
be certain amount of apparent unresolved contradiction in the law
declared by this Court.
Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better that
the ratio decidendi of
M.P. Sharma
(supra) and
Kharak Singh
(supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court
where the right to privacy is
either asserted or referred be examined and authoritatively decided
by a Bench of appropriate strength.”
On 18 July 2017, a Constitution Bench presided over by the learned Chief
Justice considered it appropriate that the issue be resolved by a Bench of nine judges.
The order of the Constitution Bench reads
thus:
During the course of the hearing today, it seems that it has become
essential for us to determine whether there is any fundamental right
of privacy under the Indian Constitution. The determination of this
question would essentially entail whether the decision recorded by
this Court in
M.P. Sharma and Ors. vs. Satish Chandra, District
Magistrate, Delhi and Ors. 1950 SCR 1077 by an eight
-
Judge
Constitution Bench,
and also, in
Kharak Singh vs. The State of
U.P.
and Ors. 1962 (1) SCR 332 by a six-Judge Constitution
Bench, that there is no such fundamental right, is the correct
expression of the constitutional position. ...
... While some state governments have supported the stand of
the Union government, others have supported the petitioners.
The correctness of the decisions in
M P Sharma
and
Kharak Singh, is to be
evaluated during the course of the reference. Besides, the
jurisprudential correctness
of subsequent decisions holding the right to privacy to be a constitutionally protected
right is to be determined. The basic question whether privacy is a right protected
under our Constitution requires an understanding of what
privacy means. For it is
when we understand what interests or entitlements privacy safeguards, that we can
determine whether the Constitution protects privacy. The
contents of privacy need to
be analysed, not by providing an exhaustive enunciation or catalogue of what it
includes but by indicating its broad contours. The Court has been addressed on
various aspects of privacy including :
(i) Whether there is a constitutionally protected
right to privacy;
(ii) If there is a constitutionally protected right, whether this has the
character of an independent fundamental right or whether it arises from within the
existing guarantees of protected rights such as life and personal liberty;
(iii) the
doctrinal foundations of the claim to privacy;
(iv) the content of privacy; and
(v) the
nature of the regulatory power of the state
Privacy for all
At page 216 the Court comments
The Attorney General argued before us
that the right to privacy must be
forsaken in the interest of welfare entitlements provided by the State.
In our view, the
submission that the right to privacy is an elitist construct which stands apart from the needs and aspirations of the large majority constituting the rest of society, is
unsustainable. This
submission
betrays a misunderstanding of the constitutional
position. Our Constitution places the individual at the forefront of its focus,
guaranteeing civil and political rights in Part III and embodying an aspiration for
achieving socio-economic rights in Part IV. 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. Above all, it
must be realised that it is the right to question, the right to scrutinize and the right to
dissent which enables an informed citizenry to scrutinize 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 scrutinize 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.
Civil and political rights and socio-economic rights do not exist in a state of
antagonism. The conditions necessary for realising or fulfilling socio-economic rights
do not postulate the subversion of political freedom. The reason for this is simple.
Socio-economic entitlements must yield true benefits to those for whom they are
intended. This can be achieved by eliminating rent-seeking behaviour and by
preventing the capture of social welfare benefits by persons who are not entitled to
them. Capture of social welfare benefits can be obviated only when political systems
are transparent and when there is a free flow of information. Opacity
enures
to the
benefit of those who monopolize scarce economic resources. On the other hand,
conditions where civil and political freedoms flourish ensure that governmental
policies are subjected to critique and assessment. It is this scrutiny which sub-serves
the purpose of ensuring that socio-economic benefits actually permeate to the under-privileged for whom they are meant. Conditions of freedom and a vibrant assertion of
civil and political rights promote a constant review of the justness of socio-economic
programmes and of their effectiveness in addressing deprivation and want. Scrutiny
of public affairs is founded upon the existence of freedom. Hence civil and political
rights and socio-economic rights are complementary and not mutually exclusive. ...
We need also emphasise the lack of substance in the submission that privacy
is
a privilege for the few. Every individual in society irrespective of social class or
economic status is entitled to the intimacy and autonomy which privacy protects. It is
privacy as an intrinsic and core feature of life and personal liberty which enables an
individual to stand up against a programme of forced sterilization. Then again, it is
privacy which is a powerful guarantee if the State were to introduce compulsory drug
trials of non-consenting men or women. The sanctity of marriage, the liberty of
procreation, the choice of a family life and the dignity of being are matters which
concern every individual irrespective of social strata or economic well being. The
pursuit of happiness is founded upon autonomy and dignity. Both are essential
attributes of privacy which makes no distinction between the birth marks of individuals.
As part of its conclusion the Court states
The judgment in
M P Sharma
holds essentially that in the absence of a provision
similar to the Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions of Article 20 (3) of the Indian Constitution. The judgment
does not specifically adjudicate on whether a right to privacy would arise from any
of the other provisions of the rights guaranteed by Part III including Article 21 and
Article 19. The observation that privacy is not a right guaranteed by the Indian
Constitution is not reflective of the correct position.
M P Sharma
is overruled to the
extent to which it indicates to the contrary.
2 Kharak Singh
has correctly held that the content of the expression ‘life’ under
Article 21 means not merely the right to a person’s “animal existence” and that the
expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a
person’s home or an intrusion into person
al security.
Kharak Singh
also correctly
laid down that the dignity of the individual must lend content to the meaning of
‘personal liberty’. The first part of the decision in
Kharak Singh
which invalidated
domiciliary visits at night on the ground that
they violated ordered liberty is an
implicit recognition of the right to privacy. The second part of the decision,
however, which holds that the right to privacy is not a guaranteed right under our
Constitution, is not reflective of the correct position.
Similarly,
Kharak Singh’s
reliance upon the decision of the majority in
Gopalan
is not reflective of the correct
position in view of the decisions in
Cooper
and in
Maneka.
Kharak Singh
to the
extent that it holds that the right to privacy is not protected
under the Indian
Constitution is overruled.
A basis for flourishing
The Court comments
3 (A)
Life and personal liberty are inalienable rights. These are rights which are
inseparable from a dignified human existence. The dignity of the individual,
equality between human beings and the quest for liberty are the foundational pillars
of the Indian Constitution;
(B) Life and personal liberty are not creations of the Constitution. These rights are
recognised by the Constitution as inhering in each individual as an intrinsic and
inseparable part of
the human element which dwells within;
(C)
Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III;
(D)
Judicial recognition of the existence of a constitutional right of privacy is not an
exercise in the nature of amending the Constitution nor is
the Court embarking on
a constitutional function of that nature which is entrusted to Parliament;
(E)
Privacy is the constitutional core of human dignity. Privacy has both a normative
and descriptive function. At a normative level privacy sub
-
serves those e ernal
values upon which the guarantees of life, liberty and freedom are founded. At a
descriptive level, privacy postulates a bundle of entitlements and interests which
lie at the foundation of ordered liberty;
(F)
Privacy includes at its core the preservation of personal intimacies, the sanctity of
family life, marriage, procreation, the home and sexual orientation. Privacy also
connotes a right to be left alone. Privacy safeguards individual autonomy and
recognises the ability of the individual to control
vital aspects of his or her life.
Personal choices governing a way of life are intrinsic to privacy. Privacy protects
heterogeneity and recognises the plurality and diversity of our culture. While the
legitimate expectation of privacy may vary from the int
imate zone to the private
zone and from the private to the public arenas, it is important to underscore that
privacy is not lost or surrendered merely because the individual is in a public place.
Privacy attaches to the person since it is an essential facet of the dignity of the
human being;
(G)
This Court has not embarked upon an exhaustive enumeration or a catalogue of
entitlements or interests comprised in the right to privacy. The Constitution must
evolve with the felt necessities of time to meet the challenges thrown up in a
democratic order governed by the rule of law. The meaning of the Constitution
cannot be frozen on the perspectives present when it was adopted. Technological
change has given rise to concerns which were not present seven decades ago
and the rapid growth of technology may render obsolescent many notions of the
present. Hence the interpretation of the Constitution must be resilient and flexible
to allow future generations to adapt its content bearing in mind its basic or
essential features;
(H)
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, privacy is not an
absolute right. A law which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights. In the context of
Article 21 an invasion of privacy must be justified on the basis of a law which
stipulates a procedure which is fair, just and reasonable. The law must also be
valid with refer
ence to the encroachment on life and personal liberty under Article
21. An invasion of life or personal liberty must meet the three-fold 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; and
(I)
Privacy has both positive and negative content. The negative content restrains the
state from committing an intrusion upon the life and personal liberty of a citizen. Its
positive content imposes an obligation on the state to take all necessary measures
to protect the privacy of the individual.
Decisions rendered by this Court subsequent to
Kharak Singh, upholding the right
to privacy would be read subject to the above principles.
Informational privacy is a facet of the right to privacy. The dangers to privacy in
an age of information can originate not only from the state but from non-state actors
as well. We commend to the Union Government the need to examine and put into
place a robust regime for data protection. The creation of such a regime requires
a careful and sensitive balance between individual interests and legitimate
concerns of the state. The legitimate aims of the state would include for instance
protecting national security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing the dissipation of social
welfare benefits. These are matters of policy to be considered by the Union
government while designing a carefully structured regime for the protection of the
data. Since the Union government has informed the Court that it has constituted a
Committee chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this
Court, for that purpose, the matter
shall
be dealt with appropriately by the Union
government having due regard to what has been set out in this judgment
