With the Supreme Court set to rule on privacy, India is on the cusp of constitutional history

The nine-judge Bench headed by Chief Justice J.S. Khehar determining whether a fundamental right to privacy exists is only the 15th time in the Supreme Court’s history that such a large Bench has convened. There is no escaping the enormity of this constitutional moment — these nine judges will definitively shape the evolution of our Constitution. What is at stake is nothing less than the terms of a fundamental relationship between us — citizens of a constitutional democracy — and the state.

When Aadhaar was initially challenged in 2015, the Union of India argued that we had no right to privacy. That claim does not merit a response. Now, joined by some States, it mounts the slightly better argument that a right to privacy must not be declared because it is an expansive right without clear boundaries. It also argues that there is no need to declare privacy as a separate right because the phrase ‘personal liberty’ in Article 21 already covers it. This article responds to these arguments by returning to the Supreme Court’s own decisions and to first principles of adjudicating constitutional rights.

Tending our rights

Since the Supreme Court began defending fundamental rights in 1950, it has displayed a deep commitment to preserving the right to ‘life’ under Article 21. Over time, it has tended this right with great care and has declared that it guarantees a right to food, shelter, education, health and clean environment. However, the companion right in Article 21 — to ‘personal liberty’ — has not fared so well. By comparison, it is an anaemic and stultified right, relied on by courts only when unavoidable, and even then only in the narrowest possible terms.

Like many constitutional courts across the world, the Indian Supreme Court often recognises unenumerated rights — those which are not included in the Constitution’s text — as being part of the fundamental rights that are written into the Constitution. As citizens of a democracy in whose service the Constitution and the government exist, surely we must welcome expansive rights. All constitutions, including India’s, are intended to maximise citizens’ freedoms and tightly restrain the government’s capacity to curtail them.

In India’s own constitutional history, we have seen that all rights travel the same path to being declared so fundamental that the Constitution and courts must defend them. Take a right that is much like the right to privacy in our instinctive understanding of its importance, and in its location at the very heart of ‘personal liberty’ in Article 21: the right against torture. Like ‘privacy’, the word ‘torture’ does not appear in Article 21. Like ‘privacy’, the word ‘torture’ is not obviously included in the narrow understanding of ‘personal liberty’ as protection against being restrained without good cause.

As the Supreme Court began to confront the rampant use of torture as a tool for investigating crimes, it began acknowledging the need for constitutional protections. In 1980, for example, Justice Krishna Iyer said: “We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril…”

In 1996, in DK Basu v. State of West Bengal, the Court finally acknowledged that while torture might have been acceptable historically, it was no longer conscionable in law or morals. The court converted this recognition into a guarantee that citizens could claim against the police by giving it a name — the ‘right against torture’ — and declaring that it flows from Article 21’s guarantee of ‘personal liberty’. But it did not stop at simply declaring this right. As unprecedented forms of interrogation often aided by new technology became prevalent, it expanded the right’s scope to retain its efficacy in the face of this change. In 2010, three judges ruled categorically in Selvi v. State of Karnataka that ‘torture’ must include not only physical torture as most earlier cases had done, but also mental torture.

The ‘freedom of speech and expression’ in Article 19(1)(a) travels the same path. Even though it never uses the word, the Supreme Court was very quick in its early years to say that this right covers the press. Where early cases related to ‘speech’ in newspapers or magazines, the right now embraces such diverse activities as communicating digitally (Shreya Singhal v. Union of India) and expressing gender identities (NALSA v. Union of India).

The arcs of the right against torture and Article 19(1)(a) point to a fatal flaw in the claim that there is no need to declare the right to privacy since it is already a part of personal liberty. Various fundamental rights share with the right to privacy the characteristic of being specific forms of liberty. Allowing such an argument would reduce much of Part III — the heart and soul of the Constitution — to no more than an exercise in redundancy. Rather, rights are declared because they protect a value acknowledged as important and distinctive enough to merit constitutional force.

Privacy follows the same logic. It is only once the court affirms the obvious position that a fundamental right to privacy exists that we can turn to considering the legitimacy of the government’s actions in infringing upon it. The Union’s argument that the privacy right is incapable of definition is disingenuous. All rights, however seemingly precise, see contests about where their boundaries lie. Invariably, they all evolve and expand over time. This is an aspect of constitutional adjudication that we must embrace. Constitutions, including rights, must be capable of responding to contemporary challenges.

A range of concerns

Even standing alone, a right to privacy embraces a wide range of things — from preventing the state from watching us without cause, to affirming that we can form and choose our identities, to deciding what information about us is collected by the state using the force of the law and how that information is processed and made available to whom. Each of these facets of privacy raises different concerns and places different burdens on the state to justify intrusions. We cannot simultaneously recognise privacy’s importance and also say that it ought not to be named and treated as such.

Lumping everything into ‘personal liberty’ flips the relationship between individuals and the state on its head. In effect, it demands that persons injured by a privacy violation establish every single time that they have a right, rather than focussing on demanding explanations from the state in court.

Naming and declaring a right has powerful consequences. In democratic orders like ours, our rights are only as strong as our capacity to assert them. Recognising the right is the first step in opening up the possibility of it trickling down into the people’s consciousness. As governments and technologies become increasingly intrusive, the people of this country must be empowered to safeguard their interests. Irrespective of the outcome, these nine judges will make constitutional history. What is far more important is that they have the opportunity to empower each and every person in India with a right that lies at the very core of personal liberty.

Ujwala Uppaluri is a graduate of NUJS Kolkata and Harvard Law School