Friday, August 25, 2017

Landmark Indian Supreme Court ruling recognizes constitutional right of privacy



In a landmark ruling akin to U.S. Supreme Court Justice William O. Douglas’s famous foray into the “penumbras, formed by emanations” in the U.S. Constitution in 1965 (Griswold on FindLaw), the Supreme Court of India has recognized a constitutional right of privacy, including informational privacy.  Here are some highlights from the unanimous 266-page disposition, per Justice Dhananjaya Y. Chandrachud (overruling his father, according to some commentary), in Puttaswamy v. Union of India.  Download the opinions in PDF here.  A very heartfelt hat tip from me to attorney Shruti Chopra for bringing this blockbuster to my attention.

The case revolved around the government’s “Aadhaar card scheme” (¶ 3).  A project of extraordinary scope, Aadhaar means to assign a unique identity number to every one of India’s 1.3bn residents based on demographic and biometric data.  The 91-year-old named plaintiff is himself a retired judge; read more at The Indian Express.

The Court examined the origin of privacy, beginning with Aristotle’s distinction between “public and private realms” (¶ 29).  The Court traced privacy through Blackstone (¶ 30), John Stuart Mill (¶ 31), Madison (¶ 33), Warren and Brandeis (¶ 34), and Cooley (¶ 36).  “Conscious as we are of the limitations with which comparative frameworks of law and history should be evaluated, the above account is of significance,” the Court explained. “It reflects the basic need of every individual to live with dignity…. The need to protect the privacy of the being is no less when development and technological change continuously threaten to place the person into public gaze and portend to submerge the individual into a seamless web of inter-connected lives.”

Speaking favorably to the evolution of “natural rights,” the Court cited Locke (¶ 40), Blackstone (¶ 40), Roscoe Pound (¶ 42), and Ronald Dworkin (¶ 46), as well as the American Declaration of Independence (¶ 41) and French Declaration of the Rights of Man and of the Citizen (¶ 41).  Applying “a settled position in constitutional law,” the Court regarded constitutional rights as “emanat[ing] from basic notions of liberty and dignity” (¶ 24).

The court regarded recognition of informational privacy as consistent with India’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (¶ 66).  “India’s commitment to a world order founded on respect for human rights has been noticed along with the specific articles of the UDHR and the ICCPR which embody the right to privacy” (¶ 91; see also ¶¶ 129-130).  The Court found collateral international legal support in the Convention on the Elimination of Discrimination against Women (¶ 132).  The Court rejected the “theory that civil and political rights are subservient to socio-economic rights” (¶ 154).

Textually, the Court invoked the Preamble of the Indian Constitution, which commits itself to values of “justice,” “liberty,” “equality,” and “fraternity” (¶¶ 93-95).  “The submission that recognising the right to privacy is an exercise which would require a constitutional amendment and cannot be a matter of judicial interpretation is not an acceptable doctrinal position. The argument assumes that the right to privacy is independent of the liberties guaranteed by Part III of the Constitution. There lies the error. The right to privacy is an element of human dignity.” (¶ 113.)

A basic, “inalienable” right to live, the Court reasoned, must predate the Constitution.  “It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right” (¶ 119).

With regard to originalism and living constitutionalism, the Court wrote: “Now, would this Court in interpreting the Constitution freeze the content of constitutional guarantees and provisions to what the founding fathers perceived? The Constitution was drafted and adopted in a historical context. The vision of the founding fathers was enriched by the histories of suffering of those who suffered oppression and a violation of dignity both here and elsewhere. Yet, it would be difficult to dispute that many of the problems which contemporary societies face would not have been present to the minds of the most perspicacious draftsmen. No generation, including the present, can have a monopoly over solutions or the confidence in its ability to foresee the future. As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.” (¶ 116.)

The court rejected strict originalism and pledged fealty to living constitutionalism expressly in a meditation upon technology:  “Today’s technology renders models of application of a few years ago obsolescent. Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society. We describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times.”  (¶ 151.)

With regard to precedentialism, the Court rejected precedents incompatible with a constitutional right to privacy.  The Court cited U.S. decisions Buck v. Bell (U.S. 1927) (approving compulsory sterilization) (Oyez) and Korematsu (U.S. 1944) (approving Japanese-American internment) (Oyez) as examples of court decisions contrary to human rights and so appropriately “consigned to the archives, reflective of what was, but should never have been” (¶ 121).

With further regard to comparativism, the Court cautioned that “[f]oreign judgments must ... be read with circumspection ensuring that the text is not read isolated from its context” (¶ 134).  That said, the court explicated precedents from the United Kingdom, United States, South Africa, and Canada, as well as the European Court of Human Rights, the Court of Justice of the European Union, and the Inter-American Court of Human Rights.  In U.S. case law (pp. 141-65), the Court pointed to:

  • Boyd v. United States (U.S. 1886) (private papers),
  • Meyer v. Nebraska (U.S. 1923) (teaching in foreign languages),
  • Pierce v. Society of Sisters (U.S. 1925) (compulsory schooling),
  • Olmstead v. United States (U.S. 1928) (Brandeis, J., dissenting) (telephone wiretap),
  • Griswold v. Connecticut (U.S. 1965) (contraceptives),
  • Katz v. United States (U.S. 1967) (telephone wiretap),
  • Stanley v. Georgia (U.S. 1969) (obscene content in home),
  • Eisenstadt v. Baird (U.S. 1972) (contraceptive information),
  • Paris Adult Theatre I v Slaton (U.S. 1973) (obscene films),
  • Roe v. Wade (U.S. 1973) (abortion),
  • United States v. Miller (U.S. 1976) (bank records),
  • Carey v. Population Services International (U.S. 1977) (contraceptive advertising and sale),
  • Nixon v. Administrator, General Services (U.S. 1977) (presidential papers),
  • Whalen v. Roe (U.S. 1977) (prescription drug information),
  • Smith v. Maryland (U.S. 1979) (pen register),
  • Bowers v. Hardwick (U.S. 1986) (sexual privacy),
  • Planned Parenthood v. Casey (U.S. 1992) (abortion),
  • Minnesota v. Carter (U.S. 1998) (home window view),
  • Minnesota v. Olson (U.S. 1990) (home overnight guest),
  • Kyllo v. United States (U.S. 2001) (thermal imaging of home),
  • Lawrence v. Texas (U.S. 2003) (sexual privacy),
  • NASA v. Nelson (U.S. 2011) (background checks),
  • United States v. Jones (U.S. 2012) (Scalia opinion and Sotomayor concurrence) (GPS tracking),
  • Florida v. Jardines (U.S. 2013) (Scalia opinion and Kagan concurrence) (dog sniff),
  • Riley v. California (U.S. 2014) (digital cell phone contents), and
  • Obergefell v. Hodges (U.S. 2015) (gay marriage).


Examining informational privacy, the Court reiterated Indian precedents rejecting the U.S. Fourth Amendment third-party doctrine (¶¶ 66, 77). 

The Court spent many pages engaging with commentators on and critics of privacy doctrine, including Richard Posner and Robert Bork (¶ 140, p. 197), Catherine McKinnon (p. 198), Alan Westin (p. 199), Roger Clarke (p. 200), Anita Allen (p. 200), and Bert-Jaap Koops, et al. (p. 201).  Specifically with regard to the formulation of an informational privacy right, the Court discussed the works of Christina Moniodis (¶ 174), Yvonne McDermott (¶ 174), Daniel Solove (¶ 175), and Posner again (¶ 179).  The Court discussed privacy principles developed through the legislative efforts to update Indian data protection, including notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure, security, transparency, and accountability (¶ 184).

Regarding the protection of life and liberty in article 21 of the India Constitution, the Court wrote: “Life is precious in itself. But life is worth living because of the freedoms which enable each individual to live life as it should be lived. The best decisions on how life should be lived are entrusted to the individual. They are continuously shaped by the social milieu in which individuals exist. The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions. ‘Life’ within the meaning of Article 21 is not confined to the integrity of the physical body.”  (¶ 106.)

“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III [of the Constitution]. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance. Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty is intended to achieve.”  (¶ 107; see also ¶¶ 168-169.)

The Court listed privacy rights previously recognized under article 21 of the India Constitution: right to travel abroad, right against solitary confinement, right of prisoners against bar fetters, right to legal aid, right to speedy trial, right against handcuffing, right against custodial violence, right against public hanging, right to doctor aid at public hospital, right to shelter, right to healthy environment, right to compensation for unlawful arrest, right against torture, right to reputation, and right to pursue a livelihood (¶ 150).

The Court rejected the recognition of privacy in statute or in common law as a basis to refuse recognition in constitutional law.  Citing the Max Planck Encyclopaedia of Comparative Constitutional Law, the Court found validity in privacy as both a negative right and a positive right.  (¶ 158.)  With regard to the separation of powers, the Court heralded the importance of judicial review as “a powerful guarantee against legislative encroachments on life and personal liberty,” not to be surrendered easily (¶ 166).  The Court frowned on the proposition of recognizing privacy only as ancillary to substantive due process, pointing with disapproval to consequent “vagaries of judicial interpretation” in U.S. law (¶ 167).

The Court concluded, in key parts:

- “Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements of
privacy also arise in varying contexts from the other facets of freedom and dignity
recognised and guaranteed by the fundamental rights contained in Part III” (part T(3)(C), p. 262).

- “At a descriptive level, privacy postulates a bundle of entitlements and interests” (part T(3)(E), p. 262).

- “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life” (part T(3)(F), p. 263).

- “While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place” (part T(3)(F), p. 263).

- “This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy. The Constitution must evolve with the felt necessities of time to meet the challenges thrown up in a democratic order governed by the rule of law. The meaning of the Constitution cannot be frozen on the perspectives present when it was adopted” (part T(3)(G), p. 263).

- “An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them” (part T(3)(H), p. 264).

- “Privacy has both positive and negative content. The negative content restrains the state from committing an intrusion upon the life and personal liberty of a citizen. Its positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual” (part T(3)(I), p. 264).

- “Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. We commend to the Union Government the need to examine and put into place a robust regime for data protection” (part T(5), p. 264).

Additional and collateral opinions run from PDF page 267 through 547.

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