The Supreme Court’s Right to Privacy Judgment – X: Conclusion: The Proof of the Pudding
Maneka Gandhi vs Union of India is one of the most famous cases in the history of the Indian Supreme Court. It is the crown jewel of our constitutional canon, India’s answer to Brown vs Board of Education, the case that revolutionised the Court’s civil rights jurisprudence. It is the judgment that consigned the notorious A.K. Gopalan to the dustbin of history, inaugurated an era in which the Constitution’s fundamental rights were to be read in an integrated and holistic manner, and breathed life into the “colourless” due process clause of the Constitution.
But Maneka Gandhi did not win her case. Her constitutional challenge to Section 10(3)(c) of the Passports Act failed, and the Court accepted the Attorney-General’s “assurance” that she would be given a hearing about her passport being impounded. The operative order of the Court, which is rarely quoted, stated:
“Having regard to the majority view, and, in view of the statement made by the learned Attorney-General to which reference, has already been made in the judgments we do not think it necessary to formally interfere with the impugned order. We, accordingly, dispose of the Writ Petition without passing any formal order. The passport will remain in the custody of the Registrar of this Court until further orders.”
Maneka Gandhi vs Union of India was the repentant Court’s mea culpa for its abdication during Indira Gandhi’s Emergency, the first concrete embodiment of its will to make amends, a precursor to the age of public interest litigation. Maneka Gandhi was the point at which the Court abandoned three decades of formalist interpretation, and inaugurated a new path where Courts would expand the rights of individuals against the State, instead of limiting or contracting them.
But neither the Court’s repentance, nor its ringing words about interpreting Articles 14, 19, and 21 together, and not even its inauguration of the substantive due process doctrine was of any use to the petitioners in the constitutional challenges to the preventive detention provisions of the National Security Act in 1980; or, in 1994, to the constitutional challenges to the TADA’s departure from CrPC safeguards such as confessions to police officers, upheld on the justification of fighting terrorism; or, perhaps most glaringly, to the constitutional challenge to the Armed Forces Special Powers Act a few years later.
What then did Maneka Gandhi transform, exactly? How could the TADA and the AFSPA have been upheld by a Court serious about atoning for what happened during the Emergency? Which anti-civil rights statutes were struck down on the basis of the interrelationship-of-rights theory, or on grounds of substantive due process? To take just three examples, after Maneka Gandhi, the Supreme Court continued to uphold book bans, (total) cattle slaughter bans, and “anti-sodomy” legislation. For all its grand words, Maneka Gandhi was more a continuum along a long history of the Court saying many wonderful things, but when it came to the crunch, deferring to the State and finding a “public interest” that justified the limitation of rights (two exceptions to this general rule are Selvi vs State and Mohd Arif vs Union of India). The history of the Supreme Court’s jurisprudence post-Maneka Gandhi warns us, therefore, that what matters more is not grandeur in words, but concrete application.
Justice Puttaswamy vs Union of India has said many wonderful things about the right to privacy. That needs to be acknowledged and praised. However, it is equally important to note that Puttaswamy was a case decided in the abstract. The State’s arguments were limited to advocating a strict, originalist reading of the Constitution, and the protean nature of privacy – weak arguments at best, even when made by excellent counsel. And in deciding upon the pure proposition of law before it, the Puttaswamy bench did all that it could have done in the context of the proceedings before it: declared that a fundamental right to privacy existed, grounded it in Part III of the Constitution, and laid down rigorous standards for the State to meet if it wanted to limit the right to privacy.
However, when future benches of the Court are called upon to apply Puttaswamy, it will not be quite so straightforward. There will be challenges to dragnet surveillance, where the State will claim that the only way to catch terrorists is to surveil the entire population, and will submit “evidence” in a sealed envelop to the Court. There will be challenges to DNA profiling laws, where the State will argue that everyone must give up their privacy to help in the national effort to detect and prevent crime. There will be challenges to data collection and data mining, where the State will argue that the loss of privacy is a small price to pay for the gain in efficiency.
This is predictable, because it has happened before, for the last sixty-five years. The law of sedition was upheld because the Court believed that the State must have the means of “preserving itself”, and freedom of speech was an acceptable casualty. TADA was upheld because the Court felt that police abuse was an acceptable compromise in the fight against terrorism. The Court did not strike down police surveillance in Gobind, despite holding that there existed a fundamental right to privacy. In PUCL, the Court did not even mandate a judicial hearing as a pre-requisite to telephone surveillance under the Telegraph Act. As the Court itself has reminded us many times, in the last analysis, individual interests must “yield” to larger social interests — and that effectively, it is the State’s prerogative to both define the social interest, and to prescribe the means towards achieving it.
But it is the very point of individual rights that they prescribe limits upon what the State can do to achieve its goals. In a world without the right against self-incrimination or a right to personal liberty, law and order would be much more efficient. In a world in which the State could ban books and organisations without judicial scrutiny, no doubt counter-terrorism efforts would be facilitated greatly. When you agree that individuals have rights, that there are some things that the State cannot do to them no matter how laudable the goal, you agree that there may well be a net loss of efficiency. And you agree because there are other values that exist apart from security, law and order, and efficiency in plugging leaks in welfare programmes. In his book about the Snowden revelations, Glenn Greenwald puts the point perfectly, when he writes:
“Nations and individuals constantly make choices that place the values of privacy and, implicitly, freedom above other objectives, such as physical safety. Indeed, the very purpose of the Fourth Amendment in the US Constitution is to prohibit certain police actions, even though they might reduce crime. If the police were able to barge into any home without a warrant, murderers, rapists, and kidnappers might be more easily apprehended. If the state were permitted to place monitors in our homes, crime would probably fall significantly. If the FBI were permitted to listen to our conversations and seize our communications, a wide array of crime could conceivably be prevented and solved.
But the Constitution was written to prevent such suspicionless invasions by the state. By drawing the line at such actions, we knowingly allow for the probability of greater criminality. Yet we draw that line anyway, exposing ourselves to a higher degree of danger, because pursuing absolute physical safety has never been our single overarching societal priority. Above even our physical well-being, a central value is keeping the state out of the private realm – our “persons, houses, papers, and effects”, as the Fourth Amendment puts it. We do so precisely because that realm is the crucible of so many of the attributes typically associated with the quality of life – creativity, exploration, intimacy.
Forgoing privacy in a quest for absolute safety is as harmful to a healthy psyche and life of an individual as it is to a healthy political culture. For the individual, safety first means a life of paralysis and fear, never entering a car or an airplane, never engaging in an activity that entails risk, never weighing the quality of life over quantity, and paying any price to avoid danger.”
In its long history, the Supreme Court has invariably favoured the claims of the security State over the rights of individuals. And the crucial point is this: Puttaswamy, in itself, is not going to change that. The standards that the Court has laid down – “legitimate purpose”, “necessity”, “proportionality”, and “procedural safeguards” – are commodious ones. For a Court still steeped in the institutional logic that upheld TADA and AFSPA, it is but a short step to argue that (for example) dragnet surveillance is constitutional because, well, anti-terrorism.
There is no doubt that without Puttaswamy, we would have been far worse off than we are today. And there is also no doubt that Puttaswamy has built a foundation for a new jurisprudence of civil rights. But we must all be equally clear about the fact that the real task will begin now: it will begin with the first bench that is asked to apply Puttaswamy to a concrete case where privacy runs up against reasons of State, and it will continue in the months, years, and decades to come. The task is not simply to apply Puttaswamy, but to use Puttaswamy to craft a genuinely progressive civil rights jurisprudence, where the original constitutional compact – that individual rights are notsubordinate to “public good”, “social good”, “public interest” (or any other variant of the phrase) – is restored. And that, now, is the responsibility of citizens, of lawyers, and of course, of the judges who will be called upon to adjudicate privacy and liberty claims in the wake of this judgment. For judges, indeed, it is a challenge: to be true to the animating spirit of Puttaswamy, and make the hard decision to tell the State that although its aim may be laudable, its motives unimpeachable, and its method beneficial, under the Constitution of India, it nonetheless cannot have what it wants.
In that sense, the legacy of Puttaswamy is open. It could become what it promises to be – the foundation for a transformative civil rights jurisprudence. Or it could become only a rhetorical lodestar, a beautiful and ineffectual angel, beating in the void its luminous wings in vain.
Time will tell.Gautam Bhatia is a lawyer practicing in Supreme Court of India. This Article was first published in his blog Indian Constitutional Law And Philosophy.