Privacy is a universal value. It is not a middle class obsession, confined to developed societies. It is an essential attribute of human personality, as we view ourselves in relation to our society and nation. It is recognised in all the international and regional statements of fundamental human rights. Thus, in the International Covenant on Civil and Political Rights, art. 17.1 it is stated:
“17.1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
17.2 Everyone has the right to the protection of the law against such interference or attacks.”
This right to privacy derives from the very first article of the Universal Declaration of Human Rights which states:
- All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
The desire for privacy rose out of human dignity. It is a desire to remain in control of the way others intrude into our space. That space includes our geographical and physical surroundings, so as to preserve some physical attributes of our dignity for those with whom we wish to share them. In the modern world, it also includes the information penumbrum that increasingly gathers data by which others, who do not know us, can now perceive our intimate activities, ideas and desires.
Of course, privacy is not an absolute value. Like the other human rights stated in global and regional instruments, the privacy right must be reconciled with the rights of others and the rights of society and government when protecting significant and larger interests. However, unless the privacy right is protected in the law, a very real risk exists that individual privacy will be eroded. When that happens to an unreasonable degree, an important attribute of human liberty is lost. That attribute has sometimes been called ‘the right to be let alone’. I would rather see it as the ‘right to be one’s self, in relationship with the world’.
The modern media is full of stories of the erosion of individual privacy both by developments of modern technology and by laws enacted in the name of efficient government, anti-terrorism or national security. Government surveillance of mega-data, now being collected on people everywhere, endangers the traditional notions of individual privacy. Urged on by often understandable fears of grave misconduct and wrongdoing, legislatures throughout the world rush to enact laws that diminish privacy.
In this context the decision of the “Constitution Bench” of the Supreme Court of India in Justice K.S. Puttaswamy (Retd) v Union of India (Writ Petition [Civil] No. 494 of 2012, announced in August 2017, is a most salutary and protective step for privacy and an encouragement to those who cherish this value, everywhere in the world. The decision upheld the principle that privacy is a fundamental right under the Indian Constitution. A negative answer to that proposition would have meant the expansion of governmental power over information concerning individuals that could have diminished liberty in India in a serious way. The decision arose in the context of an identification system. However, it concerns numerous other issues. I wish to concentrate on one with which I have had close and recent familiarity.
In 2013 I was honoured by an invitation from the University of Calcutta to deliver the Tagore Law Lectures. I chose as my topic the issue of Sexual Orientation and Gender Identity – A New Province of Law for India. My lectures were subsequently published by Universal Law Publishing Co. (2015, New Delhi). They examine the law of India on the lives and activities of sexual minorities (lesbians, gays, bisexuals, transgender, intersex and otherwise queer people (LGBTIQ)). The lectures included chapters on the science of sexual variation in the human (and other) species; the criminal law in India, and specifically section 377 of the Indian Penal Code; the laws on anti-discrimination, employment and relationship recognition; and the international responses to minority sexual conduct.
The topic was selected by me following a most important decision delivered by the Delhi High Court in Naz Foundation v Union of India(2009). In that decision, Justice A.P. Shah, the Chief Justice of the Court, and Justice Muralidhar, embraced a constitutional principle in invalidating s. 377, as inherited from British colonial times. They said:
“If there is one constitutional tenet that can be said to be an underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This court believes that the Indian Constitution reflects this value deeply engrained in the Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising the role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was ‘spirit behind the resolution’ of which Nehru spoke so passionately. In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of those who the LGBTs are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality that will foster the dignity of every individual.”
The Naz Foundation decision was welcomed in India and throughout the world. Correctly, it was viewed as the recognition of a constitutional rule upholding individual privacy. Time, the international news magazine, declared that the Delhi High Court had “with one sweeping judgment … [shaken] off a stubborn piece of colonial baggage and may have added momentum to a broader regional movement for gay rights”. An article in the Times of Indiadeclared that the decision involved “a giant, albeit belated, step towards globalisation. … It is the biggest victory yet for gay rights and a major milestone in the country’s social evolution. India becomes the 127th country to take the guilt out of homosexuality.”
Ultimately, however, an appeal was lodged against the orders of the Delhi High Court. The appeal (Koushal v Naz Foundation) came before the Supreme Court of India. A hearing took place before a bench constituted by only two Justices of the Supreme Court, Justice G.S. Singhvi and Justice S.J. Mukhopadhaya. It was of concern to many observers that such an important issue, involving the criminalisation of millions of LGBTIQ people in a democratic country such as India, should be determined by such a tiny minority of the Justices of the Supreme Court. However, that is how the Bench was constituted when Mr Anand Grover, Senior Advocate, rose to defend the Delhi High Court ruling before the Supreme Court.
That Court reserved its decision for nearly two years. The judgment was delayed until the very eve of the retirement of one of the two participating Justices. If it were to be given, it could be delayed no longer. The ruling was announced in New Delhi on 11 December 2013, as I was about to set out to India to deliver my Tagore Lectures. By one of the ironies of timing, this was a day after World Human Rights Day which falls on 10 December, the day on which, in 1948, the world (including the newly independent India) had voted without dissent in the General Assembly of the United Nations to endorse the Universal Declaration of Human Rights.
The decision of the Supreme Court was profoundly disappointing, both to legal experts and to human rights defenders, in India and around the world. Much of the opinion of the Supreme Court was confined to stating acts. However, the essence of the decision was to the effect that any change to s. 377 of the Indian Penal Code had to be left to the legislature. It was not a matter for the courts. The “so-called” constitutional rights of LGBTIQ people were dismissed, although those rights had been argued most intensely both in the Delhi High Court and in the Supreme Court. The two judge Supreme Court Bench was contemptuous of the suggested small number of the LGBTIQ population in India. It declared that it was “a miniscule fraction of the country’s population”. It was on that basis that the court appeared to retreat into constitutional inaction. No longer acting as the guardian of the constitutional rights of all Indian citizens, the court rejected the “so-called rights” of LGBTIQ persons.
Amongst the many critics of this reasoning were those who saw the decision of the Supreme Court of India, reversing the Delhi High Court, in Koushal v Naz Foundation, as a rejection of the right to privacy in the language and structure of the Indian Constitution.
This is why this particular aspect of the Privacy decision of 24 August 2017, by the Constitution Bench of the Supreme Court of India, has been so reassuring and welcomed around the world.
In his judicial opinion, opening the reasoning of the Constitutional Bench of the Supreme Court, Justice D.Y. Chandrachud (in language reflected in other opinions) indicated his disapproval of the unsatisfactory features of the Koushal decision.
It is worth repeating the emphatic and convincing reasons of that learned Justice of the Supreme Court. He says:
“126. [The reasons given in Koushal cannot] be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” … is not a sustainable basis to deny the right to privacy. The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic Constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
- The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is similarly, in our view, unsustainable. The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so called rights”. The expression “so called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.
128 The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy–dignity based claims of LGBT persons on this aspect.”
This is a most important passage in the reasoning of Justice Chandrachud. None of the reasoning of the other Justices casts doubt on its correctness. It therefore states the current doctrine of the Supreme Court of India on the privacy aspects of sexual orientation and gender identity. Those attributes of privacy could not be more important than in the case of sexual expression and manifestations.
These are amongst the most intimate, personal and generally private and intensely individualistic of the behaviours of humanity. Sexual expression is generally confined to personal, private and intimate conduct.
The law recognises, protects and sometimes limits these attributes (including the adulthood and consent of the participants) as necessary and normal to the circumstances of sexual expression. In such expression, people can, with their intimate sexual partners, engage in activity that defines their natures, feelings and important and intense emotions as human beings.
There is an enormous contrast between the unsatisfactory reasoning in Koushal and the convincing and powerful reasoning of Justice Chandrachud and his colleagues in Puttaswamy v Union of India.
The decision in Koushal was quickly made the subject of a request for relief under a curative petition. The Supreme Court of India has received that petition but it has not yet been decided. It was on that footing alone that the Constitution Bench in Puttaswamy delayed intruding into the Naz Foundation litigation. Justice Chandrachud said:
“Since the challenge to s.377 is pending consideration before a larger Bench of this Court, we would leave the constitutional validity to be decided in an appropriate proceeding.”
However, the “appropriate proceeding” will be on the hearing and resolution of the curative petition. It would appear most unlikely that the Supreme Court Bench on that occasion would not be influenced profoundly by the powerful reasoning and discourse of the Court in Puttaswamy. It is rightly critical of the dismissive approach adopted in Koushal. It is correctly critical of the pronouncement in Koushal of the constitutional role of the courts in India in upholding constitutional protection where it is invoked. The fact that the legislature might, or might not, enact protections is no reason, where the courts are invoked in specific legislation to dismiss the invocation. Least of all is it a correct basis to reject a constitutional challenge to demean the subject matter by referring to the “so-called rights” of the vulnerable group who have claimed the protection of their rights by the courts under the Constitution.
In the modern world, privacy has many aspects that travel far beyond sexual orientation and gender identity. I learned this in 1978-80 when I chaired the Expert Group on Transborder Data Barriers and the Protection of Privacy of the Organisation of Economic Cooperation and Development (OECD). That group itself drew upon the earlier work undertaken by the Nordic Council of Scandinavian Countries and by the Council of Europe and European Economic Community. All of these bodies had addressed the issues of privacy presented by the advances in digital technology, with their peculiar and wide ranging capacity to reduce individual privacy. The OECD Expert Group prepared Guidelines on Privacy. These were adopted by the Council of the OECD. They were recommended by the intercontinental membership of that body. They have been adopted in the laws of many countries of Europe, in Canada, Japan, Australia and New Zealand. They are addressed to information privacy. The reasoning of the Supreme Court of India in Puttaswamydiscloses close familiarity to these developments and to the implications of this global response for a contemporary application of the Indian Constitution.
However, the new attributes of privacy protection do not remove for a minute the critical need to ensure protection for the more traditional aspects of privacy.
This is why the remarks in Puttaswamy concerning the privacy of intimate, adult, private consensual sexual conduct and the attributes of sexual expression are so important and in harmony with contemporary developments in the law of civilised nations or privacy. Our information penumbrum is a vital aspect of privacy today, including in relation to sexual orientation and gender identity. However, the intimate conduct of consenting adult persons, acting in private, is also the proper subject of privacy protection. It is not the proper subject of the intrusion of criminal law against the wishes and identity of the individuals concerned.
All of this is correctly analysed and understood in the Puttaswamyjudgment. In a long life of watching judicial decisions in my own country and abroad, I cannot think of one that was more disappointing to me than the decision of the Supreme Court of India in Koushal. It was distressing not only for the consequences for the liberty of millions of vulnerable Indian citizens. It was also upsetting for the condescending and dismissive reasoning of the Bench. And its inconsistency with reasoning in other contemporary decisions, including in India.
The privacy decision in Puttaswamy is to be welcomed on many grounds. However, for me the keenest appreciation arises out of what is said in that case about Koushal: not only the substance of that decision but also the tone, language and insensitivity of its reasoning.
From far away in Australia, I will now watch the future unfold. In due course I look forward to adding a post script to my Tagore Lectures 2013. I hope that it will be a fresh chapter which speaks of the role of the courts in defending fundamental rights under the Indian Constitution. Including the fundamental right to individual privacy.
 * Justice of the High Court of Australia (1996-2009); Chairman OECD Expert Group on Transborder Data Barriers and the Protection of Privacy (1978-80); EPIC International Privacy Champion Award (2010); Australian Privacy Medal (2011).
 M.D. Kirby, “Privacy Today: Something Old, Something New, Something Borrowed, Something Blue” (2017) 25(2) Journal of Law Information Science 207. Where the OECD Guidelines of 1980 are described and their history explained.