Privacy was upheld as a fundamental right by a nine-judge Constitution Bench of the Supreme Court of India on Thursday, thus making it clear that anyone can challenge the actions of the state or other entities against this right. The bench unanimously found that privacy was a right emanating from Article 21 of the Constitution, which guarantees a right to life and personal liberty. But like every fundamental right, the government also has the power to impose “reasonable restrictions”.
The various opinions by the Constitution Bench delve into this question, drawing out what could eventually be used by the government as reasonable restrictions on the fundamental right of privacy. These portions of the opinions are the most crucial parts of the judgment in a sense, because they cover how privacy will actually be enforced as a right at least so far as the government is concerned.
If the test of “reasonableness” is too broad, then it would matter little that privacy is a fundamental right, since the government would have a free hand in going around it. If it is sufficiently narrow, one might even be able to make conclusions about what today’s judgment might mean for Aadhaar, among other government schemes that will now have to be tested against the fundamental right.
As such, the opinions in Thursday’s don’t codify the definition of privacy, nor do they offer a detailed test against which restrictions may be judged. Most opinions concur that those issues will have to be dealt with on a case-to-case basis. Nevertheless, the judgment does go into the question of reasonable restrictions.
Reasonableness test
Justice DY Chandrachud’s opinion, co-signed by Chief Justice of India JS Khehar, Justice RK Agrawal and Justice S Abdul Nazeer, reminds us of the test used for all restrictions on Article 21, under which privacy is being read.
- “The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement.”
- “Second, the requirement of a need, in terms of a legitimate state aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action. The pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness.”
- “The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. 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.”
This test predates Thursday’s judgment, but will now be used in earnest to examine any government action that seeks to suspend the right to privacy. As such it suggests a few things: The use of Aadhaar will need to be backed by a law to become mandatory. An Aadhaar Act exists for delivery of services connected to the Consolidated Fund of India, and the government has also passed a law making it mandatory for income tax purposes. But both the Union and state governments have used it for many other things without the backing of a law. That may now be illegal.
The government also needs to identify its legitimate aims. The conclusions of Chandrachud’s opinion give a few examples of what these might be. “The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits,” the order says.
That expansive set of categories could help the government defend a number of its laws or proposed ones that have been accused of violating a right to privacy. The draft DNA profiling Bill, which proposes the creation of a national DNA data bank, might be defended under the “preventing and investigating crime” exception that Chandrachud lists.
Aadhaar
Indeed, Chandrachud’s opinion includes a section that will be of keen interest to those who have been following the legal challenge against Aadhaar, which was the origin of this Constitution Bench reference. Chandrachud lists out how collection of data for social welfare could count as a reasonable restriction.
“In a social welfare state, the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital state interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the state to insist on the collection of authentic data. But, the data which the state has collected has to be utilised for legitimate purposes of the state and ought not to be utilised unauthorizedly for extraneous purposes. This will ensure that the legitimate concerns of the state are duly safeguarded while, at the same time, protecting privacy concerns.”
Later, Justice Sanjay Kishan Kaul in his concurring opinion also lists out a potential set of legitimate aims that may form the grounds for reasonable restrictions:
- Other fundamental rights
- Legitimate national security interest
- Public interest include scientific, historical or statistical purposes
- Criminal offences
- Anonymised data
- Taxes
The first test of the new recognition of privacy as a fundamental right will come when the petitions challenging the validity of Aadhaar are put before another Constitution Bench. For now it seems as if the nine-judge bench has upheld privacy as a fundamental right but opened the door to Aadhaar being accepted as a reasonable restriction – at least as long as it is backed by a law and used for social welfare delivery.
The debate over Aadhaar might then end up hinging on the last part of the test: Are the demands for biometric data proportional to the needs of the state? Or do they end up fundamentally reshaping the relationship between the state and the individual?