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.
