Privacy as a Fundamental Right

We must recognize that individual rights play a critical role, they are not merely elitist concerns, but integral to our idea of forming a community

Society, Jean Jacques Rousseau said, will be better if its citizens spent time thinking more about public matters and less about their own private affairs. Rousseau was hardly alone in thinking this way. As the British philosopher Bernard Williams pointed out, in a 1985 essay published in The New York Review of Books, various reformers, revolutionaries, and social theorists placed particular emphasis on the value of community and saw personal and family loyalties as divisive and disloyal even when they were exercised in their usual place.

But, as Williams so powerfully argues, there simply are no real reasons to distrust the private, and, if anything, history shows us that we should fear any restrictions placed on the private domain. Social justice can mean something, wrote Williams, “only if it acknowledges individual lives that have their own loyalties and are not entirely shaped to its demands.” And it is this justice which we ought to see as integral to any proposal that seeks to enhance society.

“If we are to view others in our society as equal citizens, then we must recognize that individual rights play a critical role, that they are not merely elitist concerns, but that they are integral to our idea of forming a community.”

It is this concern, and this recognition that individual liberties go to the root of democracy, that, in many ways, lies at the core of the Indian Supreme Court’s remarkable judgment in Justice K.S. Puttaswamy (Retd) v. Union of India. Here, on 24 August this year, a 9-judge bench of the court not only unanimously held that the Constitution guarantees a fundamental right to privacy, but, also even more notably, acknowledged that privacy lies at the centre of liberty and individual autonomy, that it has values both intrinsic and instrumental, that to express ourselves freely, to do as we please inside our homes, and, ultimately, to further ourselves as equal citizens, a promise of privacy is essential.

In all, the court delivered six separate opinions: Justices Chelameswar, Bobde, Nariman, Sapre, Kaul and Chandrachud each delivered a separate opinion of their own. Justice Chandrachud’s opinion was also signed on to by Chief Justice Khehar, and Justices Agrawal and Nazeer. Together these opinions are likely to make a profound impact on our constitutional jurisprudence. No doubt, their real legacy will lie in their application, but they provide to us a roadmap; they show us the evolution of the conception of privacy; they tell us why any Republic ought to have a special interest in protecting privacy; and, more than anything else, they provide to us a benchmark for constitutional interpretation.

The Indian Constitution, as the Union government pointed out during arguments in Puttaswamy, doesn’t explicitly guarantee any right to privacy (the government’s argument, of course, was that it doesn’t implicitly do so either). Now, the Constitution, like most such documents, memorialises a set of abstract principles. The broad bedrock on which these principles stand finds mention in the Constitution’s Preamble: to secure to the country’s citizens justice, social, economic and political; liberty, of thought, expression, belief, faith and worship; equality, of status and of opportunity; and to promote among them all fraternity, assuring the dignity of the individual and the unity and integrity of the Nation.

These doctrines recognised in the Preamble, as Ambedkar said in a speech delivered to the Constituent Assembly in November 1949, are really “principles of life.” They are, he added, “not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy.” But the Preamble, and its values, are not strictly justiciable. The specific liberties and freedoms that the Constitution guarantees would still have to be culled out from Part III of the document, which enumerates the various fundamental rights. The rights explicated here, too, are, much like the preambular values, though, abstract in character. And Part III, while recognising a right to equality, a right to freedom of speech and expression, a right against self-incrimination, and a right to life and personal liberty, among other guarantees, does not overtly promise a right to privacy.

“The question of whether a right to privacy flows from these guarantees has, therefore, always been one that has required a certain interpretive exercise: can the rights to equality, to life, and to free speech and expression, be meaningfully enjoyed without a right to privacy?”

Is privacy not inherent in the concept of ordered liberty that the preamble speaks about? Should the preambular values not translate into a proper interpretation of Article 21?

Initially, the Supreme Court saw the guarantees in Part III of the Constitution as largely positivist declarations of rights. In one of the earliest constitutional cases decided by the court, in AK Gopalan v. State of Madras (1950), the majority of the court not only rejected the notion that fundamental rights are to be read as a collective whole, with each taking meaning from the other, but also held that the Constitution does not guarantee a protection of due process, that a legislation, validly enacted, was sufficient to negate the rights to life and personal liberty contained in Article 21. When the court was confronted later with issues concerning the right to privacy, it was this judgment in Gopalan, and its general hypothesis, that held the field. As a result, in MP Sharma v. Satish Chandra (1954), an 8-judge bench of the court ruled 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. Nor is it legitimate to assume that the constitutional protection under Article 20(3) would be defeated by the statutory provisions for searches.” The court here was looking at privacy merely from the perspective of unreasonable searches and seizures—a right against such actions, it found, could not be read into the Indian Constitution in the absence of a specifically elucidated guarantee.

Similarly, in Kharak Singh v. State of UP (1962), the court, in ruling on issues concerning police surveillance, considered the idea of privacy on narrow grounds. “Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Article 19(1)(d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Article 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner,” wrote Justice Ayyangar, for a majority of the 6-judge bench. “As already pointed out, the right of 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.”

In time, though, the Supreme Court slowly started seeing privacy as encompassing issues that went far beyond any general right against surveillance. Its reading of Part III, and the fundamental rights guaranteed thereunder, on broader grounds stemmed first from the judgment in RC Cooper v. Union of India (1970). Here, the court overruled the verdict in Gopalan, to rule that the various guarantees of Part III were not mutually exclusive, that fundamental rights are not to be seen as contained in separate silos. That is, the rights to equality, the rights to various freedoms, including the right to freedom of speech, and the right to life and personal liberty would have to be read as a collective whole, as constituting, as Ambedkar had said in the context of the preamble, a union of trinity.

It was this approach that the Supreme Court adopted, when confronted in Gobind v State of Madhya Pradesh (1975) with a challenge to a set of regulations that allowed the police to make regular domiciliary visits and picket the petitioner’s house and watch his movements through day and night. Justice Mathew, who wrote the court’s judgment, began his discussion by recognising that the “question whether right to privacy is itself a fundamental right flowing from the other fundamental rights guaranteed to a citizen under Part III is not easy of solution.” But he traced the right’s development in the United States, and, in so doing, found that privacy has a conception that goes beyond the immediately apparent. He relied, for instance, on the U.S. Supreme Court’s judgment in Griswold v. Connecticut (1965), where a statute that criminalised the use of contraceptives was challenged. Justice Douglas, who wrote for the majority, had held that the statute was unconstitutional as it invaded the right to privacy. He found that every specific guarantee in the American Bill of Rights have penumbras, which give life and substance to each other. The protection against all governmental invasion “of the sanctity of a man’s home and the privacies of life” was, therefore, according to him, fundamental. He further found, as Justice Mathew recounted in his judgment, that the inquiry that needs to be made is whether a right involved “is of such a character that it cannot be denied without violating those ‘fundamental principles of liberty and justice which lie at the base of all our civil and political institutions’ and that ‘privacy is a fundamental personal right, emanating from the totality of the Constitutional scheme under which we (Americans) live’.”

Justice Mathew similarly placed reliance on the celebrated judgment in Roe v. Wade (1973), where the US Supreme Court ruled that that the roots of the right to privacy “may be found in the First Amendment, in the Fourth and Fifth Amendments, in the penumbras of the Bill of Rights, in the Ninth Amendment, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.”

The framers of India’s Constitution, too, much like their American counterparts, Justice Mathew recognised, “wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United State 277 U.S. 438, 471, the significance of man’s spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the government a sphere where he should be let alone.”

With Gopalan’s view of reading fundamental rights as mutually exclusive having been rendered nugatory by the Supreme Court’s judgment in RC Cooper, Justice Mathew was free to read Part III as constituting a collective whole. For him, a right to privacy was implicit in the concept of an “ordered liberty” that the Constitution certainly promised. And this right, he held, ought to encompass and protect the “personal intimacies of the home, the family marriage, motherhood, procreation and child rearing.”

In the years following Gobind, the Supreme Court consistently found the right to privacy as flowing from the collective guarantees of Articles 14, 19 and 21. It has held telephone tapping to be a serious invasion of an individual’s privacy; it has recognised sexual violence as an unlawful intrusion into privacy; it has found that while a hotel might be a public place, its rooms occupied by guests are part of a private sphere; it has recognised that the autonomy to choose one’s occupation flows from a right to privacy; it has found that the right to choose one’s diet occupies a zone of privacy; it has held that the a decision made by a woman on whether to procreate or not is integral to her privacy and bodily integrity; and in 2010, in Selvi v. State of Karnataka (2010), it struck down the use of narco-analysis as an interrogation technique on the ground that it infringes privacy.

“So far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State,” the court wrote in Selvi. “While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person `to impart personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates that the right against self-incrimination should also be read as a component of `personal liberty’ under Article 21. A conjunctive reading of Articles 20(3) and 21 of the Constitution along with the principles of evidence law leads us to a clear answer. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties.”

Thus, from MP Sharma, the court had clearly come a long way, in recognising that fundamental rights do not occupy separate precincts of operation, that they are not mutually exclusive, and that read together they guarantee a right to privacy. It was this evolution that was sought to be questioned by the Union government before the Supreme Court during the course of arguments in the Aadhaar case. Fortunately, the 9-judge bench in Puttaswamy has allayed any fears that the clock might be rolled back. Together, the six opinions recognise the value and importance in the private. They acknowledge, as Bernard Williams wrote, that individual rights are necessary to enjoy a sense of shared citizenship. And collectively the opinions can well serve as a lodestar for future battles, to secure to us all freedom from tyranny.

Suhrith Parthasarthy is an independent practitioner of law currently practising in the Madras High Court.