Is there a fundamental right to privacy? Why are we even having this conversation?

There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, “Morning, boys, how’s the water?” And the two young fish swim on for a bit, and then eventually one of them looks over at the other and goes, “What the hell is water?” -David Foster Wallace, This is Water (Commencement Speech, Kenyon, 2005)

Much like the two young fish in this allegory, the Indian Constitutional landscape is swimming in the guarantees of a right to privacy but clearly seems to not know it. Yesterday, the Supreme Court passed an order setting up a nine judge bench to determine whether there is any fundamental right to privacy under the Indian Constitution. The nine judge bench shall be hearing from both, the petitioners and the Advocate General, today. This was done in order to decide on and possibly overrule the decisions made in MP Sharma (1954), by an eight judge bench, and Kharak Singh (1963), by a six judge bench.

In MP Sharma, the petitioners challenged the constitutional validity of search warrants issued under section 96(1) of the Criminal Procedure Code against Art 20(3). Art 20(3) enshrines the right against self-incrimination and reads that “No person accused of any offence shall be compelled to be a witness against himself.” It was argued by the petitioners that a search of a person’s premises for documents is akin to compelling a person to give evidence against himself. The court discussed the American jurisprudence on the Fourth and Fifth Amendments and did not find any support for the contention that a search and seizure in all circumstances would amount to unreasonable search and seizure and hence violative of the constitutional guarantee. A search warrant ipso facto does not amount to self-incrimination. The Supreme Court finds that in both the American and English jurisprudence the State has power of search and seizure for the protection of social security, which is regulated by the law. There are, likewise, safeguards against the reliance on self-incriminating oral testimonies in Indian criminal procedure. It is only in passing that the court has said that “When the Constitution makers have thought fit not to subject such regulations to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.” The court dismissed the application.

Kharak Singh v. State of UP is about surveillance of a person under a Uttar Pradesh Police Regulation that did not have a statutory basis. It was challenged under Article 19(1)(d) (right to move freely) and Article 21 (protection of life and personal liberty). The judgement was split, Ayyangar, J. wrote for 4 brother judges and Subba Rao, J., for two. Justice Ayyangar does say that “the right to privacy is not a guaranteed right under our constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.” Yet, on closer reading of the judgement one finds that his decision is formed on an implicit recognition of a right of privacy under the garb of personal liberty. Ayyangar, J., says that “personal liberty” includes all the rights which go to make up the personal liberties that are not covered under Art 19(1). He goes on to refer to the preamble to emphasize that the constitution was designed to “assure the dignity of the individual”. Whereas Subba Rao, J., expressly says that even though our Constitution does not declare a right to privacy as a fundamental right, it is an essential ingredient of personal liberty.

This might appear confusing. So what, you might ask, if the judge refers to the right of privacy only “in passing”. There are several parts inside a judgement or a case, such as the parties to the case, the citation, the facts of the case, the law of the case, and the decision arrived at. The part of the judgement where the law is discussed is further sifted through to arrive at ratio decidendi and obiter dicta. Judges don’t caption these subheadings in the judgements they write. Ratio decidendi, or holding, is the core principle on the basis which the court makes its decision. Obiter dicta is Latin for “by the way” representing a remark made in passing. It is opinions that the judges express which are not required to resolve the case at hand. The two are distinguished by careful reading of the judgement.

It is quite apparent that decisions made in Govind v. State of Madhya Pradesh (1975) that recognized a fundamental right to privacy, and Maneka Gandhi (1978) which expounded on the scope of personal liberty, are not in any way contrary to these existing larger bench decisions of the Supreme Court discussed above. The supposition that they have created a confusion in the jurisprudence on Part III’s protection to privacy is entirely unfounded. There seems only one logical way that this 9 judge Constitutional bench can decide on this matter. More importantly, though, should we need to recognize a fundamental right to privacy?

The decisions of the SCOTUS, whose jurisprudence has heavily influenced the Indian Supreme Court, have taken the incremental approach towards recognizing a right to privacy under the 4th and 5th Amendments, the Bill of Rights, the 9th Amendment and the concept of liberty from the 14th Amendment to the US Constitution. Within the American jurisprudence there has been a struggle to clearly define the concept of privacy with several scholars criticising the case-by-case developments to be either too narrow in scope or too vague to be useful precedent. A 1981 Yale Law School note on the subject suggests that the essence of privacy can be encapsulated in the phrase “secrecy and solitude”: the ability to control who has access to us and information about us. The right of privacy capturing the ideas of decisional autonomy and state non interference have been relied upon in several decisions of the SCOTUS across the decades. Nonetheless, the lack of an explicit statement in any part of the US Constitution makes some uneasy at the possibility of having it all taken away.

Interestingly, feminist scholars in the US have argued against using the framework of a right to privacy for grounding the bodily autonomy of women. Feminists such as Katherine McKinnon feel a moral ambiguity towards this right since a vast chunk of the feminist liberation has been challenging the exclusion of the private sphere from the realm of the law enforcement’s intervention. Martha Nussbaum suggests that the US should take a leaf out of the Indian jurisprudence which has successfully been protecting various aspects of bodily integrity and autonomy, and protection from state interference, under the ambit of human liberty (Art 21).

The increasing importance of the issue of privacy in the “information age” cannot be overemphasised. The Aadhaar case is the first of many courtroom battles that will be waged as more and more of Indians live out their lives digitally, giving (what is still currently recognized as) sensitive private information, to apps and interfaces that are run by organizations eager to exercise influence on their users’ decisions. The SC must exercise caution that no part of its obiter ends up being oft cited, contrarily, and out of context, much as Ayyangar, J., passing remarks in Kharak Singh have been.

PS: Thanks to Prof Sudhir Krishnaswamy for his help in thinking through the problem.

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