Yesterday, a nine-judge bench of the Supreme Court reserved judgment on the issue of whether there exists a fundamental right to privacy under the Indian Constitution. The case, which arose out of the constitutional challenge to the Aadhaar Scheme (and which has been covered extensively on this blog), was argued over seven days. An informal record of the oral hearings, prepared by two of us, is available here (filter for bias, because both Prasanna and I were representing the Petitioners), and the parties’ written submissions can be accessed on LiveLaw.

As is evident from the record of oral hearings, counsel on both sides, as well as the judges, undertook extensive and divergent intellectual journeys over the seven days, ranging from Aristotle, Descartes and Rousseau, through a century of American Supreme Court jurisprudence, to the European Data Protection Directive. In this essay, however, I’m going to set a very narrow course: I will focus on the two concrete reference questions that necessitated the establishment of the nine-judge bench, and argue that they deserve equally concrete answers. This is not only because judicial discipline – as specified by the Supreme Court in Mirajkar’s Case – requires the Court to cleave closely to the referral questions, but because privacy, which is a notoriously slippery and difficult concept at the best of times, is particularly unsuited to being resolved by an abstract enquiry. In jurisdictions all over the world, privacy jurisprudence has evolved over time, on a case-to-case basis, responding to changes in technology, surveillance, social mores, and ways of being in the world. Nine-judge benches are rare sightings, and whatever the Court decides, its decision is bound to hold the field for a few generations to come. It is therefore particularly important that the Court confine its opinion to the narrowest terms possible, lest, in the absence of any concrete case before it, it nonetheless ends up laying down dicta that will limit or stifle the evolution of privacy jurisprudence for a long time to come.

How then did this case come before a nine-judge bench? On August 11, 2015, while constitutional challenges to the Aadhaar scheme were being made before a three-judge bench, the Union of India argued that the main ground of challenge – the right to privacy – could not be raised, because the Indian Constitution did not guarantee a fundamental right to privacy. The Union of India relied upon two early judgments – M.P. Sharma vs Satish Chandra (1954, 8 judges) and Kharak Singh vs State of UP (1962, 6 judges), which contained observations suggesting that there may not be a fundamental right to privacy. The Union argued that all future judgments – starting with Gobind vs State of MP (1975, 3 judges), which had held that there was a fundamental right to privacy, had been decided by smaller benches, and were therefore not good law. It was in response to this contention that the Court passed an order referring the case to a higher bench, and framing two questions. In paragraph 13, the Court stated:

“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.”

The two questions, therefore, were concrete and straightforward. First – what was the ratio of M.P. Sharma and Kharak Singh? And secondly, were subsequent cases affirming the fundamental right to privacy correct or not? I will consider each in turn, because the answer to the second depends upon the answer to the first.

M.P. Sharma and Kharak Singh

In paragraph 17 of M.P. Sharma, an eight-judge bench of the Supreme Court observed that:

“When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right , by some process of strained construction.”

It was this observation that was at the heart of the State’s case that M.P. Sharma held against a right to privacy. However, to understand what, precisely, this observation means, it is important to read the case in its context. In M.P. Sharma, the question before the Supreme Court was with respect to the legality of search warrants pertaining to the documents and properties of a company accused of embezzlement of funds. One of the grounds of challenge was that the search warrants violated Article 20(3) of the Constitution (the guarantee against self-incrimination). It was in this background framework that the Court made the above observation, which reads, in full:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.”

The Court made this observation because, as it recorded in paragraph 3 of the judgment, the Petitioner in the case had argued that the prohibition of searches and seizures was “necessarily implied… by certain canons of liberal construction which are applicable to the interpretation of constitutional guarantees. In support of this line of argument, great reliance has been placed upon American decisions in which similar questions were canvassed.”

In particular, the Petitioner had argued that search and seizure of documents amounted to “compelled production”, which violated Article 20(3). To substantiate this analogy, he relied upon decisions of the US Supreme Court interpreting the Fourth Amendment of the US Constitution, which states that:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In M.P. Sharma, the Court rejected this argument on the ground that “there is no basis in Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same .” (paragraph 17) And it was in the same paragraph that it made the only observations about the right to privacy that are present in this case.

A holistic reading of P. Sharma, therefore, reveals the following:

The holding of the case is that a search or a seizure does not amount to “compelled production” and therefore does not in itself violate Article 20(3) of the Constitution. The Court rejects incorporating a right to privacy analogous to the Fourth Amendment into Article 23. M.P. Sharma is silent on the question of whether there might be a right to privacy under other Articles of the Constitution, such as 19(1)(d) or 21. M. P. Sharma is silent on the question of whether there might be a basis for the right to privacy that is not grounded in principles “analogous to the Fourth Amendment”.

In this context, it is important to note that at the time M.P. Sharma was decided, the American approach to the Fourth Amendment was a property-based one (see Akhil Amar, “Fourth Amendment First Principles”, (1994) 107(4) Harvard Law Review 757, 800), and essentially protected persons against unlawful physical trespass from State agents (Olmstead vs United States (1928), upholding a warrantless wiretap on the basis that it did not involve any physical trespass onto a person’s property). However, subsequently, in Katz vs United States (1967), the Supreme Court abandoned the theory of physical trespass, and held that the Fourth Amendment applies to “persons, not places”, and that there existed “zones” in which every person had a “reasonable expectation of privacy.”

However, in a trio of cases – Griswold vs Connecticut (1965), Eisenstadt vs Beard (1972) and Roe vs Wade (1973) – the Supreme Court evolved a constitutional right to privacy that was not grounded in the Fourth Amendment. In Griswold – which was a case about whether outlawing contraception for married couples was constitutional – the Supreme Court held that the right to privacy was a “penumbral right” under the Constitution. A penumbral right was a right that emanated from a textual guarantee in order to give it “life and substance” (p. 484), and therefore was to be considered part of the textual right itself. The Supreme Court drew out the right to privacy from the textual rights to freedom of association (First Amendment), the guarantee against quartering of soldiers in peacetime (Third Amendment), prohibition of unreasonable searches and seizures (Fourth Amendment), the right against self-incrimination (Fifth Amendment), and the residuary rights clause (Ninth Amendment).

The holding in Griswold was subsequently extended to unmarried couples in Eisenstadt vs Baird, and in Roe vs Wade, which was a case about whether outlawing abortion was illegal, the Supreme Court accepted the logic of Griswold. It held that although there was no “explicit right to privacy” (p. 152), it was implicit in the “concept of ordered liberty” (p. 152). In addition to the Amendments already invoked in Griswold, Roe also invoked the Fourteenth Amendment (the “personal liberty” clause).

In Gobind vs State of MP – which, as discussed above, was the first Indian case to hold in favour of a fundamental right to privacy – the three-judge bench of the Supreme Court relied upon Griswold (paragraph 16) and Roe (paragraph 18), inter alia, to hold that there was a fundamental right to privacy under the Indian Constitution, drawn from Articles 19(1)(a) (“freedom of speech”), 19(1)(d) (“freedom of movement”) and 21 (“right to life and personal liberty”) (paragraphs 28 and 32). It is therefore clear that Gobind in no way went against the binding precedent in P. Sharma. This is because:

M.P. Sharma only rejected importing principles of the Fourth Amendment into Article 20(3) Gobind was a case that was neither about the Fourth Amendment, nor about Article 20(3) The right to privacy was in Gobind was based not under Article 20(3), but under Articles 19 and 21 Gobind relied upon American developments in the law of privacy, but not upon American Fourth Amendment law; rather, it relied upon American law that drew out a right to privacy as a “penumbral right”, which was necessary to make other rights – such as the right to freedom of speech and association – effective.

For this reason, it is clear that Gobind – and the forty years of consistent privacy jurisprudence that have followed it – is not inconsistent with P. Sharma. The “ratio” of M.P. Sharma is that search and seizure of documents does not amount to “compelled testimony” under Article 20(3). The ratio of Gobind is that there exists a fundamental right to privacy under Articles 19(1)(a), (d), and 21.

The second case – Kharak Singh vs State of UP – also does not stand in the way. Kharak Singh was a case involving police surveillance of a “history-sheeter”. Various forms of surveillance – with the exception of “domiciliary visits” were upheld as consistent with the fundamental right to freedom of movement, with the Court remarking at one point that it was not necessary to consider Article 21, since there was no equivalent in India to the American right to privacy.

Kharak Singh was decided by a bench of six judges. In Maneka Gandhi vs Union of India, (1978), a bench of seven judges expressly held that in view of the judgment of the bench of eleven judges in R.C. Cooper vs Union of India (1970) the majority in Kharak Singh stood overruled. Kharak Singh, therefore, was no longer good law after R.C. Cooper. Gobind – and all the cases that followed – were decided after R.C. Cooper, and were therefore not contrary to Kharak Singh.

In fact, Kharak Singh was specifically overruled on a relevant point: in Kharak Singh, the Court followed the approach to interpreting Part III of the Constitution outlined in A. K. Gopalan vs State of Madras (1950) where each individual right in the Constitution was deemed to deal with specific subject matter, to the exclusion of all other rights. It was in this context that the Court held, in Kharak Singh, that after the constitutionality of the police surveillance rules at issue had been considered under Article 19(1)(d), there was no need to consider Article 21, noting that: “the right to privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

It was this exact approach – whereby an impugned law could be analysed under only one constitutional provision – that was rejected by Maneka Gandhi relying upon R. C. Cooper. Consequently, Kharak Singh does not stand in the way of a definitive finding that there exists a fundamental right to privacy under the Indian Constitution.

The Correctness of Gobind and Subsequent Cases

With the shadow of M.P. Sharma and Kharak Singh having been removed, Gobind – and the forty years of consistent privacy jurisprudence that followed it – need only be considered on their own merits. This needs only a brief analysis. We may begin by noting that the absence of a specific textual guarantee is no bar to a finding that a fundamental right exists. Rather, the right to privacy exists because – as held in Gobind – it is an essential element of Articles 19(1)(a), (d) and 21 of the Constitution. There is extensive literature by now (both judicial and scholarly), demonstrating that the freedom of speech, of movement, and the right to personal liberty would be rendered illusory if there was no accompanying guarantee of privacy (consider, for example, the American judgment of NAACP vs Alabama, where the Supreme Court held that compulsory disclosure of membership lists of a politically unpopular oganisation would stifle the freedom of association).

In this context, it is important to note that the two Constitutions from which the framers of the Indian Constitution borrowed most heavily – the American and the Irish – also did not have a guaranteed right to privacy. In both these jurisdictions, the right to privacy has been read into the Constitution by the judiciary . We have already examined the United States; and in McGee vs Attorney-General [1974], the Supreme Court of Ireland read in a right to privacy as part of the guarantee of “personal rights” under Article 40(3)(1) of the Irish Constitution. The logic of both the Supreme Court of the United States and the Supreme Court of Ireland was that textually guaranteed rights would be ineffective and without force were it not for an accompanying right to privacy. And this was precisely the logic employed by the Supreme Court in Gobind vs State of MP.

There is, therefore, no strong reason for the Supreme Court, in 2017, to turn the clock back and hold that all its judgments, starting with Gobind in 1975, were incorrectly decided, insofar as they held that there exists a fundamental right to privacy under the Constitution.

The Referral Questions

Let us come back to the two referral questions. As I noted at the beginning of this essay, the two questions were concrete and straightforward. After the discussion above, I submit further that they can be answered in an equally straightforward manner.

Answer 1: M.P. Sharma and Kharak Singh do not hold that there is no right to privacy under the Indian Constitution, and to the extent that they do, they are incorrect and deserved to be overruled.

Answer 2: The judgments of this Court, starting with Gobind vs State of MP, supra , and afterwards, which, for the last four decades, have been developing the law of privacy on a case by case basis are correctly decided, and good law.

All other issues – “definitions” of privacy, limitations on the right to privacy, the philosophical basis of privacy, privacy applied to horizontal relations, data protection – are simply irrelevant to the case. A particularly curious aspect of these hearings has been a general impression that the Court is considering these issues for the first time in its history, and is required to hand down a comprehensive judgment settling all possible issues. However, as the referral order was aware, that is not the case. The referral order consciously did not ask the Court to rule in the abstract about whether there existed a fundamental right to privacy, and if so, how it was to be defined, limited and understood (as I have suggested above, such an enterprise, in the abstract, is exceedingly perilous). What the referral order did ask the Court to do was to examine the ratio of one set of cases, and examine the correctness of another set. These two questions can – and should – be answered through a brief, three-paragraph order; everything else should be left to smaller benches of the Court to develop, with the benefit of concrete cases before it.

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(Disclaimer: I assisted Mr Arvind Datar, one of the senior counsel representing the Petitioners.)