The Supreme Court’s Right to Privacy Judgment – VI: Limitations
In the first two posts in this series, we discussed the conceptual foundations of the Supreme Court’s right to privacy judgment. In the next three posts, we discussed the Court’s treatment of the three prongs of privacy identified by it: bodily and mental privacy, informational self-determination, and decisional autonomy. This brings us to the next aspect of the judgment: the Court’s articulation of limitations upon the right to privacy.
At the bar, it was common cause between the Petitioners and the Respondents that the right to privacy was not an “absolute right.” In that event, what kinds of limitations was the State permitted to impose upon the exercise of the right to privacy? The Court had two options before it. One was to simply affirm the forty years of existing jurisprudence before it, through the course of which various benches had articulated the scope of privacy restrictions, in the context of concrete cases. The other was to articulate a separate set of standards within the judgment itself. As we shall see, the Court did both. It not only affirmed existing case law, but it also – through a majority – clarified and streamlined the standards that the State must meet in order to justify privacy violations.
The Operative Order and Prior Case Law
Let us go back (yet again) to the operative order, the single most important part of the judgment. Paragraph 3 of the Order states that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” Paragraph 4 continues: “Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.”
There are two issues to consider. The first is the Court’s separate acknowledgment that privacy is part of Article 21 and a part of the freedoms guaranteed by Part III of the Constitution. This is extremely important. Given that Article 21 is itself “part of the freedoms guaranteed by Part III”, why did the Court single it out as an independent repository for the right to privacy, dealing with it independently of the rest of Part III? The answer is to be found in Paragraph 4 of the operative order, where the Court affirms all its privacy judgments subsequent to Kharak Singh. As I shall go on to show, while there is no difficulty when it comes to limitations on facets of privacy that are found in other Articles of Part III, when it comes to Article 21, the Court, recognising the importance of the right to privacy as a facet of life and personal liberty, has historically insisted on a more rigorous standard than is generally used for other rights that fall within Article 21. Paragraphs 3 and 4 of the Operative Order, read together, preserve both the Court’s limitations jurisprudence that it has developed for fundamental rights such as Articles 14, 19, and 25 (which cover facets of privacy), as well as the more rigorous jurisprudence that it has specifically developed for privacy under Article 21.
Part III Rights
Let me explain. On the first issue, Justice Nariman’s opinion provided the clearest exposition. In paragraph 86, he held that:
“… when it comes to restrictions on this right, the drill of various Articles to which the right relates must be scrupulously followed. For example, if the restraint on privacy is over fundamental personal choices that an individual is to make, State action can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under Article 21 read with Article 19(1) (a) only if it relates to the subjects mentioned in Article 19(2) and the tests laid down by this Court for such legislation or subordinate legislation to pass muster under the said Article. Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14; or Article 21 read with Article 19(1)(a) in the aforesaid examples must be met in order that State action pass muster.”
To take a hypothetical example, imagine a case where the State requires compelled disclosure of membership lists of a political organisation on national security or public order grounds (as was the case in the famous American case, NAACP vs Alabama). This is an issue that will be at the intersection of Articles 19(1)(a) (freedom of speech), Article 19(1)(c) (freedom of association), and Article 21. The Court will then be required to apply the standards under Article 19(2) and (4). In particular, it will be required to apply the standard laid down in Arup Bhuyan vs State of Assam, where it was held that in invoking “security of the State” or “public order” to restrict expressive or associative rights, the State must show a very high degree of proximity – an incitement to violence standard – in order to justify its restrictions.
Justice Nariman’s formulation was accepted, in various ways, in the separate opinions authored by the other judges. Justice Kaul concluded his judgment by observing that “let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part.” (para 83) Justice Bobde observed that “once it is established that privacy imbues every constitutional freedom with its efficacy and that it can be located in each of them, it must follow that interference with it by the state must be tested against whichever one or more Part III guarantees whose enjoyment is curtailed. As a result, privacy violations will usually have to answer to tests in addition to the one applicable to Article 21. Such a view would be wholly consistent with R.C. Cooper v. Union of India.” (para 46) Justice Chelameswar held that “the limitations are to be identified on case to case basis depending upon the nature of the privacy interest claimed. There are different standards of review to test infractions of fundamental rights. While the concept of reasonableness overarches Part III, it operates differently across Articles (even if only slightly differently across some of them)… to begin with, the options canvassed for limiting the right to privacy include an Article 14 type reasonableness enquiry; limitation as per the express provisions of Article 19; a just, fair and reasonable basis (that is, substantive due process) for limitation per Article 21…” (paras 42 and 43) And Justice Chandrachud, writing the plurality opinion, made the observation that “a law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights.” (Conclusion H)
This much, therefore, is uncontroversial: to the extent that a privacy claim is grounded in a right other than Article 21 of the Constitution (such as Article 14, or 19(1), or 25), its validity will be tested on the basis of established, existing jurisprudence on the limitations of those rights. Of course, that jurisprudence is itself fluid and evolving, and not free of controversy.
This brings us to Article 21. As Justice Bobde correctly pointed out in his opinion, violations under Article 21 have to conform to the “just, fair and reasonable” standard, as laid out in Maneka Gandhi vs Union of India. Where things get murky, however, is that in Gobind vs State of MP – the first privacy judgment of the Supreme Court – the Court laid down a more rigorous variant of this test. In Gobind, the Court held that privacy violations could be justified only if there was a “compelling State interest” at stake, and if the law was narrowly tailored – that is, the State could have to show that there was no other, less privacy-infringing way, through which it could achieve its goals. The dictum in Gobind was followed in the phone-tapping case – PUCL vs Union of India – where the Court upheld the constitutionality of phone tapping only by passing guidelines that restricted its scope to narrow and targeted surveillance (rather than a dragnet). This was followed in State of Maharashtra vs Bharat Shantilal Shah, another surveillance case. As Justice Chandrachud noted in his analysis of Bharat Shantilal Shah, at para 70:
The safeguards that the Court adverts to in the above extract include Section 14, which requires details of the organized crime that is being committed or is about to be committed, before surveillance could be authorized. The requirements also mandate describing the nature and location of the facilities from which the communication is to be intercepted, the nature of the communication and the identity of the person, if it is known. A statement is also necessary on whether other modes of enquiry or intelligence gathering were tried or had failed or why they reasonably appear to be unlikely to succeed if tried or whether these would be too dangerous or would likely result in the identification of those connected with the operation. The duration of the surveillance is restricted in time and the provision requires “minimal interception.”
This, in essence, is the narrow tailoring standard (for interested readers, I have addressed this issue in detail in a paper, here), which falls within the broad definition of “just, fair, and reasonable” under Article 21, but which – as can be seen – is a rather rigorous variant of that standard that the Court has applied specifically to privacy claims.
It is in this regard that we see something of a split in the Puttaswamy verdict. Justice Bobde, for example, read the “just, fair, and reasonable” standard under Article 21 as requiring only a showing by the State that its law was “rational”:
“Under Article 21, the standard test at present is the rationality review expressed in Maneka Gandhi’s case. This requires that any procedure by which the state interferes with an Article 21 right to be “fair, just and reasonable, not fanciful, oppressive or arbitrary.” (para 45)
A simply showing of rationality, however, is much less rigorous than the compelling state interest-narrow tailoring standard. No other judge, however, agreed with this formulation. Justice Sapre provided his own articulation, laying down a standard of “social, moral and compelling public interest in accordance with law.” (para 33) Justice Nariman did not articulate any separate standard under Article 21. It was Justice Chelameswar, however, who most clearly recognised the distinction between a standard “just, fair, and reasonable” test, and the “compelling State interest” test – which he called “the highest standard of scrutiny that a Court can adopt.” (para 43) He noted that:
“The just, fair and reasonable standard of review under Article 21 needs no elaboration. It has also most commonly been used in cases dealing with a privacy claim hitherto.64 Gobind resorted to the compelling state interest standard in addition to the Article 21 reasonableness enquiry. From the United States where the terminology of ‘compelling state interest’ originated, a strict standard of scrutiny comprises two things- a ‘compelling state interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring means that the law must be narrowly framed to achieve the objective). As a term, compelling state interest does not have definite contours in the US. Hence, it is critical that this standard be adopted with some clarity as to when and in what types of privacy claims it is to be used. Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State interest to be used. As for others, the just, fair and reasonable standard under Article 21 will apply. When the compelling State interest standard is to be employed must depend upon the context of concrete cases.” (para 45)
According to Justice Chelameswar, therefore, privacy claims themselves were of two kinds: ordinary claims, which would be tested under a “just, fair and reasonable” standard, and more important claims, which deserved the “compelling State interest-narrow tailoring” standard. However, even this formulation was unable to carry a majority.
Proportionality under Article 21
This brings us to Justice Chandrachud’s plurality, which had the support of four judges. In paragraph 168 of his judgment, Justice Chandrachud laid out three requirements that the State must meet to justify: the existence of a “law”, a “legitimate State interest”, and – most importantly – the requirement of “proportionality”:
“Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”
The proportionality standard is used primarily in European and in international human rights jurisprudence, apart from being applied by Courts in Canada, South Africa and elsewhere. In Andrews vs Law Society of British Columbia, the Canadian Supreme Court articulated the meaning of proportionality as follows:
“The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.”
Readers will note that this proportionality standard – which, broadly (and with a few variants) is applied across the world – itself contains a statement of narrow tailoring (the second prong).
Now, the plurality muddied waters a little bit in Conclusion H, where Justice Chandrachud made the following observation:
“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 nexusbetween the objects and the means adopted to achieve them.”
While a superficial reading of this paragraph may suggest a retreat to the “rationality” standard under Article 21, it is not so. First, the proportionality standard is itself three-pronged, and rationality is only its first prong. Secondly, the Supreme Court has applied the proportionality standards in other judgments, where it has fleshed out more fully the multiple aspects of what proportionality means. Thirdly – and most importantly – the standard was articulated with clarity in Justice Kaul’s judgment which – combined with the plurality – gives us a majority. Justice Kaul held that:
“The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: “(i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.” (para 70)
This articulates, in more express terms, the test suggested by the plurality. It is a well-settled position of law that when a Court is “split” on a particular point, the separate opinion that makes a plurality a majority becomes the “controlling opinion” on that point. This is not to suggest that there is any difference between the plurality and Justice Kaul’s opinion – because, as I have argued above, Justice Kaul only spelt out in more express terms the standard that Justice Chandrachud laid out. What this does ensure, however, is that any confusion generated by Justice Chandrachud’s use of “rational nexus”, without adverting to the other aspects of the proportionality standard, is dispelled.
The conclusion, therefore, is this. As per a majority in Puttaswamy, privacy infringements under Article 21 must satisfy the proportionality standard – a familiar standard of review that is used across the world to check State infringement of individual rights. While the requirements of a “law”, a “legitimate purpose”, and “procedural guarantees against abuse” are straightforward enough, the real bite of the proportionality standard lies in the requirement that the law be “necessary in a democratic society”, and be proportionate. This places an affirmative burden upon the State not only to demonstrate a rational connection between the law and its goals, but also to show that the law minimally infringes rights. Or, to put it another way, if the Petitioners can show that the State can achieve its goals without infringing upon privacy to the extent that it is doing, the State’s law must fall. Note, of course, that under this standard, the burden is not upon the Petitioners – once an infringement of privacy is shown, it is for the State to demonstrate necessity and proportionality. And this standard – as we have seen – is not based upon judicial deference, but upon rigorous judicial review. The Court might defer to an extent when it comes to the question of whether the State’s purpose is legitimate or not – however, while assessing proportionality, the State must be held to high standards, with the Court requiring demonstrable and genuine evidence to back up its claims that is measures are necessary and proportionate.
In my view, therefore, Justice Kaul’s four-factor test – which is a clarification and a clearer articulation of the plurality’s proportionality standard – is now the law of the land when it comes to assessing the constitutionality of privacy violations. It is a powerful and effective test, which achieves the correct balance between individual rights and the State’s interest. What remains to be seen is how the Court will now apply the test in the concrete constitutional challenges that shall soon be before it.
Gautam Bhatia is a lawyer practicing in Supreme Court of India. This Article was first published in his blog Indian Constitutional Law And Philosophy.