Five Years of the Fundamental Right to Privacy: The Development of Privacy Rights Since the Supreme Court’s Landmark Judgment
On August 24, 2017, the Indian Supreme Court issued a landmark judgement holding that the Indian Constitution guarantees a fundamental right of privacy to each individual. The judgement,
Justice KS Puttaswamy v Union of India, was issued by a nine-judge bench; there were six separate opinions written, each affirming a fundamental right to privacy. How has the right to privacy developed since this landmark judgement? How do these developments reflect on the reasoning of the Supreme Court in Puttaswamy?
In this piece, I analyze some important judgements of the Supreme Court and various high courts where state action has been challenged on the grounds that it violated the fundamental right to privacy. In doing so, I attempt to map the landscape of cases where privacy rights have been allegedly infringed, and how courts have understood and applied the tests for studying privacy-violating state action in Puttaswamy.
One motivation to study these cases is to understand whether the test for examining state action in Puttaswamy is a good test. By “good” I mean whether the test creates certainty about what kinds or categories of state actions will be considered violative of the right to privacy. I have argued
earlier that the judgement, in fact, fails to do so. The Puttaswamy judgement lays down a three-fold test. If the state action meets all three parts of the test, it is considered a constitutionally permissible privacy infringement. The three parts of the test are: (a) a valid law must exist to permit the state action, (b) there must be a legitimate state aim for which the restriction on privacy is justified, and (c) the means adopted under the law must be proportional to the objective of the law.
My argument against this being a good test is that it is inherently incapable of creating certainty. Necessity and proportionality are tests that have to be applied to specific factual situations and doing so gives considerable leeway to judges to decide what is necessary and proportionate. This in turn makes it difficult to create a privacy jurisprudence that is essential for informing society and government about what state action is permissible. My analysis of the judgements that follow seeks to understand whether my hypothesis is true.
A necessary caveat Is in order—the scope of analysis is not exhaustive. I cover close to a dozen interesting judgements of the Supreme Court and some high courts, but the total number of cases concerning state action restricting the right to privacy is much higher. Hopefully, this is a starting point for more exhaustive research on this issue. I begin by trying to map the landscape of cases in which the right to privacy is alleged to be violated.
The Right to Privacy since August 2017
Litigants have challenged state action and legislation on the grounds that they violate the right to privacy in many significant cases. In some of these, the right to privacy was a central challenge to the validity of legislation and state action, for example, in the judgement on the constitutionality of Aadhaar (known as the
Second Puttaswamy case, decided September 2018). Similarly, in its judgement decriminalizing adultery
(Joseph Shine v. Union of India, September 2018), the Supreme Court used the three-fold test to invalidate the relevant provisions of the Indian Penal Code, 1860. In another case, the Allahabad High Court used the test to decide whether the state government’s action of placing banners with the personal information of those engaged in vandalism was constitutional
(IN RE: Banners Placed on Roadside in the City of Lucknow v State of Uttar Pradesh, Allahabad High Court, March 2020).
In a subset of these cases, the Supreme Court did not apply the Puttaswamy test because the Puttaswamy judgement had itself identified certain areas where the right to privacy was protected. For example, in
Navtej Singh Johar v Union of India, where the court invalidated the criminalization of homosexuality, the court cited the Puttaswamy judgement’s observation that sexual orientation is a facet of individual privacy to strengthen its argument for decriminalization.
In another category of cases, the right to privacy was supplemental or additional ground for deciding constitutional rights. For example, in
Common Cause v Union of India (March 2018), the Supreme Court adjudicated on the question of whether Article 21 of the Constitution (Right to Life) includes a right to die and whether passive euthanasia is permissible. In this case, the court discussed the right to privacy to find an additional source for locating individual autonomy in relation to his or her death.
The gamut of cases examined for this piece fall broadly under these categories. This covers a case where the Supreme Court considered whether details of assets of judges were information accessible under the Right to Information Act, 2005
(CPIO, Supreme Court v Subhash Chandra Agarwal, November 2019). It also covers challenges to different forms of police action—a mandate directed at owners of dance bars to install CCTVs inside their premises
(Indian Hotel and Restaurant Association v. State of Maharashtra, January 2019), the interception, interference, and destruction of electronic messages by investigative agencies
(Vinit Kumar v Central Bureau of Investigations and Others, Bombay High Court, October 2019), and a direction to shut down the internet to maintain security and public order
(Anuradha Bhasin and Others v Union of India, January 2020). Finally, cases pertaining to individual privacy arising out of measures to contain the spread of COVID-19 that challenged (a) vaccine mandates by some state governments
(Jacob Puliyel v Union of India, May 2022) and (b) the practice of putting up posters outside homes of individuals testing positive for COVID-19
(Kush Kalra v. Union of India, December 2020).
As one would expect, courts in each of these cases have used the Puttaswamy judgement on privacy to the specific factual circumstances in varying ways. It is, however, hard to discern whether this application creates a new set of principles that takes privacy jurisprudence further in a consistent and predictable manner. Specifically, as the following analysis shows, it is hard to locate this consistency and predictability even in the category of cases where courts have used the three-fold test laid down in Puttaswamy.
The application of the three-fold test and a lack of certainty
Court decisions that have used the three-fold test highlight its problems with respect to the need for creating certainty through a body of jurisprudence. Each of the cases highlights the problem in understanding “necessity” and “proportionality.” I take three examples from the cases discussed above to explain this issue.
In
Puttaswamy II, where the Supreme Court decided on the constitutional validity of Aadhaar, the court upheld certain uses of Aadhaar as being proportional to its objectives of implementing social welfare delivery but struck down certain uses as being disproportionate. For example, the mandatory linkage of Aadhaar with PAN numbers was upheld as proportional, while the mandatory linkage of Aadhaar with bank accounts was held to be disproportionate. From this, it is unclear what lessons can be drawn about the proportionality of future state action in similar cases. If there is a clear underlying principle that enabled the court to differentiate between linking Aadhaar with PAN numbers and bank accounts, the court did not explain it in a manner that can be applied usefully in the future.
Similarly, in
Joseph Shine v UOI, the Supreme Court struck down the provision criminalizing adultery stating that its criminalization was unconstitutional on both grounds—it was not necessary, and it was disproportionate to the negative effects of adultery. The court said this was so, especially since a civil remedy (divorce) was already available as an alternative.
Could one therefore surmise from this reasoning that all laws criminalizing human conduct, for which civil remedies exist, will be considered unnecessary and disproportionate, if they impinge on individual privacy? Again, in this judgement, it is unclear whether the court is creating a general principle for how to understand necessity and proportionality for future cases or whether its rationale is applicable only to the specific case before it.
The Allahabad High Court struck down the Lucknow administration’s move to put up banners containing the personal information of individuals accused of vandalism in
IN RE: Banners Placed on Roadside in the City of Lucknow v State of Uttar Pradesh. The court held that first, there was no law that enabled the local government to take such a step, so the state action did not meet the first part of the three-fold test. Then the court went further to examine necessity and proportionality and held that the publication of personal information in public was not necessary to achieve the state’s desired objective. It also held that the state action was disproportionate because it chose to publicize the personal information of those accused of certain crimes but not of many other individuals accused of even more serious crimes.
It is unclear, again, how to derive a general principle out of the court’s reasoning on necessity and proportionality. For example, the judgement does not explain why publicity is not necessary to meet the state’s objective. The government argued that its objective behind the publicity was to “. . . deter the mischief mongers from causing damage to public and private property.” The court did not respond to this argument. It instead reasoned that no necessity exists because the accused are not fugitives.
In these and many other cases where courts have examined state action infringing privacy using the three-fold test from Puttaswamy, there is a clear lack of developing jurisprudence. In each specific case, courts have either upheld or invalidated state action based on the facts. But it is not clear how this body of judgements leads to predictability and certainty about state action on privacy in the future. Instead, the use of the three-fold test ensures that judges enjoy wide discretion in either deferring to state action or to scrutinize it strictly.
I am grateful for the research support provided for this piece by my Carnegie India colleague Tejas Bharadwaj.
—By Anirudh Burman