An inalienable privacy right: Supreme Court puts constitutional check to creeping majoritarianism of our times

The Times Of India

It’s been a historic week in the Supreme Court. On Tuesday a divided five judge Constitutional Bench of the Court declared triple talaq unconstitutional – a verdict that the Union government argued for and welcomed. On Thursday, a unanimous nine judge Constitutional Bench declared that all persons in India have an inalienable fundamental right to privacy. The Union government precipitated the formation of a nine judge Bench and argued vehemently that no such right existed.

As things turned out Chief Justice Khehar, who retires this weekend, will do so with the satisfaction that the Supreme Court has reaffirmed its commitment to protect fundamental rights with a resolute 9-0 verdict. While the court was unanimous it still took 547 pages to spell out its position. While Justice Chandrachud carried three other judges with him, five judges concurred but wrote separate opinions.

So the court delivered six separate opinions and decoding the plurality to ascertain the majority view on several points of law is likely to engage lawyers, law students and legal academics well after Chief Justice Khehar has retired. I will present here the key findings of the court and indicate where there are different views on these issues.

All judges agree that privacy is a fundamental right in the Constitution. Justice Chelameswar makes it clear that while the text of the Constitution does not expressly provide for such a right it may be implied from the phrase ‘personal liberty’ in Article 21. Justice Chandrachud and others go further to locate this privacy right in a holistic reading of Article 14, 19 and 21. Justice Nariman is very precise in locating the three dimensions of privacy in three different configurations of constitutional articles: privacy of the physical body in Article 19(1)(d) and (e) and Article 21; informational privacy in Article 21 and privacy as personal choice and autonomy in Articles 19(1) (a) to (c) and Articles 20(3), 21 and 25.

While such a listing may appear to be legal arcania, this is evidence of the depth of the court’s commitment to the protection of the scope and content of the privacy right. When legislation is challenged for a privacy violation it’s constitutional provenance that will determine its relative priority to other constitutional values as well as the exceptions and limitations to the right.

The scope of the privacy right varies between the various opinions. Justices Chandrachud and Nariman sketch out a fully developed privacy right that protects individual data and information from state and non-state actors, personal autonomy and intimate personal choices as well as the protection of personal dignity wherever that may be infringed. Together they form a majority view on the scope of the privacy right.

They also agree that model of constitutional interpretation and conclusions reached in the infamous ADM Jabalpur emergency detention case needs to be expressly overruled so that such view may not be resurrected in Indian constitutional law and politics. They were at pains to clarify that such a privacy right was not the obsession of the wealthy and privileged – an expression of post-materialist values – but was at the core of the protection of the autonomy and dignity of the poorest citizen of this country. They understood privacy to be a foundational value – the core of a liberal Constitution – on which the constitutional values of dignity, fraternity and liberty could be achieved.

The rhetorical and legal force of these conclusions would leave most observers curious about the radiating effects of this opinion. What does this decision mean for the Aadhaar case and the Koushal case which was discussed in oral arguments? While the judges did not decisively rule on the constitutional validity of the Aadhaar law and remanded the case back to the Constitutional Bench set up for this purpose, at least four judges took a view that would shake the constitutional defence of Aadhaar.

Justice Chandrachud, who spoke for four judges, was clear that the only limitations that could be imposed on privacy were on national security, criminal enforcement and welfare distribution grounds. While the tenor of Justice Nariman’s views would raise similar doubts on the constitutional validity of Aadhaar he did not express this unequivocally.

At least six judges took the view that the privacy right protected individual choices and autonomy on intimate personal choices. Justices Chandrachud and Kaul expressly referred to the Koushal case and were clear that the case was wrong to the extent that it did not pay adequate attention to the privacy right. Justice Nariman’s endorsement of the core value of personal autonomy and choice to be the foundation of all constitutional rights and values leaves little manoeuvring room for the five judge bench that will review this case shortly.

Justice Khehar inherited a court that was locked in two simultaneous battles: with the executive over judicial appointments and its hostile approach to constitutional litigation represented by the previous belligerent Attorney General. Secondly, there was an unresolved internal battle over the collegium process with dissension and dysfunction. With the decision in KS Puttaswamy, Justice Misra will receive a court that has rebuffed executive government belligerence and resolved internal dissension to the extent that Justice Chelameswar and Justice Khehar both endorse a robust constitutional right to privacy. It will now be his turn to protect the court and guide it through the creeping majoritarianism of our times.


This article was originally published in the Times Of India, on August 25th, 2017.


Sudhir Krishnaswamy, An inalienable privacy right: Supreme Court puts constitutional check to creeping majoritarianism of our times (The Times Of India, 25th August 2017)