The Supreme Court is expected to pronounce its landmark verdict on whether citizens can claim right to privacy as a fundamental right on Thursday.
Delhi-based lawyer Gautam Bhatia, explained in his blog, why a nine-judge bench was established and how this could affect you.
Bhatia argued that around the world, privacy jurisprudence evolved over time and 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," Bhatia wrote in his original post.
So how did this case end up before a nine-judge bench? Bhatia refers to constitutional challenges made to Aadhar scheme on 11 August, 2015 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 – MP 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," Bhatia explained in his original post.
According to Bhatia, the two referral questions posed by the court were: What was the ratio of MP Sharma and Kharak Singh? Were subsequent cases affirming the fundamental right to privacy correct or not?
Bhatia wrote: In paragraph 17 of MP Sharma, an eight-judge bench of the Supreme Court observed: “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.”
Bhatia said that this observation goes to the crux of the State's argument that MP Sharma held against a right to privacy. However, Bhatia argued that to completely understand the observation, it is important to place the case in its proper context. In MP 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, he argued in his post.
Bhatia wrote that 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), Bhatia said in his original post.
To substantiate this analogy, the petitioner relied upon US Supreme Court decisions 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.”
Bhatia said in MP 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.
Bhatia wrote that a holistic reading of MP 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.
MP 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.
MP 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”.
Bhatia argued that it is important to remember that at the time MP 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,” he wrote in his original post.
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), Bhatia said in his blog.
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 MP Sharma, Bhatia argued on his blog.
This is because:
MP 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.
Bhatia argued that 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, Bhatia wrote in his post.
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 AK 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 RC 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, Bhatia argued on his blog.
Bhatia argued that with MP Sharma and Kharak Singh having been dispensed with — and the forty years of consistent privacy jurisprudence that followed it – need only be considered on their own merits. Bhatia said 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)," he said.
"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 , 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," Bhatia argued on his blog.
Bhatia said there is no reason 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.
Returning to the referral questions, Bhatia said they can be answered thus:
- MP 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.
- The judgments 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.
Bhatia argued that all other issues such as limitations on the right to privacy, the philosophical basis of privacy, privacy applied to horizontal relations, data protection were 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," Bhatia wrote on his blog.
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, Bhatia concluded on his post.
Gautam Bhatia graduated from law school in 2011. He practices law in Delhi and teaches at the National University of Juridical Sciences.
Published Date: Aug 24, 2017 09:59 am | Updated Date: Aug 24, 2017 01:23 pm