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In a judgment pronounced on August 24, 2017, the Supreme Court of India affirmed a right to privacy, significantly redefining the concept of liberty and the entitlements that flow out of its protection. This ground-breaking judgment from a nine-judge bench, has potentially far reaching implications in South Asia and beyond.

In deciding the case, the court revisited the founding principles of the Indian Constitution to consider whether privacy was envisioned as a way of life for Indians. Addressing a challenge of constitutional interpretation, the court had to determine whether privacy is a constitutionally protected right and to redefine the concepts of liberty and the privileges that flow from it. The determination has ignited hopes among the Indian community for fresh entitlements rooted in the concept of privacy and human dignity, such as secrecy attributed to one’s sexual orientation which, according to reports, may possibly lead to the decriminalization of homosexuality in India.

Background of the Case

The issue before the court was a petition challenging the ‘Aadhaar card scheme’ of the Indian Government. The petition challenged the government’s compilation of demographic and biometric data into a central database containing citizen information on the ground that it violated privacy.

This scheme draws validity from the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act No. 18 of 2016, enacted to provide for efficient, transparent, and targeted delivery of subsidies, benefits, and services to individuals residing in India. The services are rendered by assigning a unique, non-transferrable identity number by the name ‘Aadhaar number.’ Each holder is assigned an Aadhaar number once their demographic and biometric information is submitted to the Central Identities Data Repository following an enrollment process; the data is then retained for authentication purposes.

As defined under Section 2 of the Act, demographic information includes the name, date of birth, address, and other relevant information of an individual. Whereas biometric information contains photographs, finger prints, iris scans, or other such biological attributes of an individual as may be specified by regulations. However, information such as race, religion, caste, tribe, ethnicity, language, records of entitlement, income, or medical history are not collected. The holders of Aadhaar numbers are intimated about the use and management of their information and can exercise a right to access services. The system is managed by the Unique Identification Authority of India (UIDAI). Although it is not yet mandatory to have a twelve-digit Aadhaar number, the list of transactions that require it is increasing, which will eventually make possessing a card a necessity

Examination of the Right to Privacy in India

Although a right to privacy is not enshrined in the Constitution of India, it has been dealt with over a period of time as a subset under Articles 19 and 21 of the Constitution. Article 19 stipulates a right to freedom under seven specific rights including the right to freedom of expression and speech, while Article 21 pronounces protection of life and personal liberty.

In arriving at their final determination in this case, the Supreme Court ventured into clarifying various interests and entitlements that privacy can potentially safeguard under the existing legal framework.

Acknowledged as a work in progress, the court primarily explored the concept of privacy, defining it in its simplest sense, as the “inviolable core” of each human being. This conception of autonomy was deemed to be compromised by the societal existence and the overarching presence of state and non-state actors. The court admitted that it was an enormous challenge to set parameters on the concept of privacy in an era where technology governs virtually every aspect of human life.

The most intriguing fact about the judgment is its analysis of the already complex right to privacy in the context of a global information-based society. The absence of an explicit right to privacy enshrined in the constitution made the effort more challenging and raised “far reaching questions involving interpretation.”

In defining privacy, the court looked at broad contours of the right, including the doctrinal foundations of the claim to privacy, contents of the right, and state regulation.

Evolution of the Privacy Doctrine in India

The judgment referred to the jurisprudence of the court to trace the development of the privacy doctrine in India. The opinions in early cases dealing with the same matter remain divided. In cases Kharak Singh v. State of U.P (1963) and MP Sharma v. Satish Chandra (1950) the court declined to recognize the existence of a right to privacy, when the minority judgment considered privacy as an ingredient of personal liberty. In the Gopalan Doctrine (1954), the court construed the relationship between Articles 19 and 21 as one of mutual exclusion.

R.C. Cooper v. Union of India (1970) was the turning point, where the majority recognized a right to privacy as constitutionally protected, rejecting the theory that the fundamental rights are water-tight compartments. Subsequent decisions including Menaka Gandhi v. Union of India (1978), Gobind v. State of Madhya Pradesh (1975), R Rajagopal v. State of Tamil Nadu (1994), and People’s Union for Civil Liberties v. Union of India (1997) affirmed, by interpretation, the existence of a constitutionally protected right to privacy. The issue was that these decisions were delivered by smaller benches of the Supreme Court which technically had lesser strength than the judgments which declined a right to privacy. These disparate opinions led to the current judicial exploration.

In arriving at its finding, the court engaged in a careful exploration of cases dealing with various matters pertaining to privacy such as wiretapping, maintaining police records and surveillance (1981), entrance to private homes to commit rape (1991), privacy of communication (1985), publication of an autobiography of a condemned prisoner (1994), the intersection between privacy and medical jurisprudence including doctor- patient confidence (1998) and the unwed mother’s right not to disclose the name of the putative father of her child (2015).

Interpretation of the right to privacy was primarily drawn from the Preamble of the Indian Constitution which was deemed to encompass the core values of the Constitution as a whole. Liberty and dignity were highlighted by the court as remarkably illustrative of the conception of privacy. The court opined that man has certain natural or inalienable rights and that it is the function of the state, in order that human liberty might be preserved and human personality developed, to give recognition and free play to those rights. Privacy was deemed an essential attribute to lead a life in dignity.

The court further held privacy as intrinsic to freedom and liberty and that it cannot be waived. In interpreting the right to privacy, the court pronounced that the constitutional vision of the founding fathers should not freeze but be furthered by the experience of oppressed individuals whose rights were violated; constitutional interpretation is but a process in achieving justice, liberty, and dignity for all. Therefore, as society evolves, so must the Constitution.

International Character of the Judgment

The judgment is remarkable in another sense for its approach in interpretation. Interpreting the right to privacy, the court considered India’s commitments under international law as well as the right as protected by other jurisdictions. Specific focus was on the international human rights regime and its core instruments including the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), and International Covenant of Economic, Social and Cultural Rights (ICESCR) which all pronounce a right to privacy. The court held that recognition of privacy as a fundamental constitutional value is part of India’s commitment to a global human rights regime. Further, Article 51 of the Constitution requires the State to endeavor to “foster respect for international law and treaty obligations.” The comparative analysis, in the judgment, drew from Canada, England, South Africa, Europe, and the Supreme Court of the United States.

Influence of the Judgment

This decision by the Supreme Court of India has the potential to impact a number of areas within India including respect for sexual orientation and sexual identity. Further stretching the boundaries of privacy, the Supreme Court of India explicitly upheld that privacy contains at its core preservation, inter alia, sexual orientation and a right to be left alone. Under Section 377 of the Indian Penal Code, homosexuality is a criminal offence. In 2014, the Supreme Court of India delivering the judgment in National Legal Services Authority v. Union of India recognized transgender as a third gender. However, this ruled out lesbians, gays, and bisexuals from the definition. In the current judgment, individual autonomy and personal choices are regarded as intrinsic to privacy and one’s sexual orientation was accepted as a matter of their private life which should be respected by others.

This judgment has also impacted the day to day lives of populations in neighboring countries as persuasive authority in related matters. Recently, a discourse is building up in Sri Lanka against a digital national identity card, for which a central database containing finger prints, iris scans, and other biometric data of its citizens will be developed. Much of the opposition for this project is stemming from the concerns petitioners took up against the Aadhaar scheme in India and its information database.

This is evidence of a growing global movement to protect the right to privacy. A few years before this judgment, England scrapped their existing national biometric identification scheme. Prime Minister Theresa May declared that “The national identity scheme represents the worst of government…. It is intrusive and bullying, ineffective and expensive. It is an assault on individual liberty which does not promise a greater good.” England rescinded the system in the face of serious concerns raised for privacy.

Conclusion

The judgment of the Supreme Court of India is not only ground breaking but is particularly significant in its approach to define the right to privacy. Founded upon norms and values of collectivism, it is intriguing to see how these claims and concerns arise from jurisdictions in the Global South, as opposed to jurisdictions in the Global North which have always celebrated individualism pertaining to rights and liberties. This is an indication of the changing course of rights-based justice in the Global South due to the impacts of globalization. The judgment concludes on a profound note that a Constitution must evolve with the felt necessities of the time to meet the challenges emanating from the democratic order.