On 24 August 2017, the Supreme Court of India in a historic judgement declared the right to privacy as a fundamental right protected under the Indian Constitution. In declaring that this right stems from the fundamental right to life and liberty, the Court's decision has far-reaching consequences.

A nine-judge bench of the Supreme Court in the case of Puttuswamy v. Union of India has declared that the right to privacy is a fundamental right protected under Part III of the Constitution of India. While primarily focused on the individual's right against the State for violations of their privacy, this landmark judgement will have repercussions across both State and non-State actors and will likely result in the enactment of a comprehensive law on privacy.

Background

The judgement was pronounced in response to a reference made in connection with the legal challenge to India's national identity project – Aadhaar – during which the Advocate General of India argued that the Indian Constitution does not include within it a fundamental right to privacy. His arguments were based on two cases decided by the Supreme Court - one, MP Sharma v. Satish Chandra decided by an eight judge bench in 1954 and the other, Kharak Singh v. State of Uttar Pradesh, by six judges in 1962. Both cases had held, in different circumstances, that the Constitution of India does not specifically protect the right to privacy. In the 55 years that have passed since these cases were decided, there hasn't been a larger bench of Supreme Court that has considered this issue, and therefore these judgements were still binding.

MP Sharma dealt with the right against self-incrimination and, while it did mention the right to privacy in passing, it was clear that these comments were stray observations at best. Kharak Singh was a confusing decision that held, on the one hand, that any intrusion into a person's home is a violation of liberty (relying on a US judgement on the right to privacy), but went on to say that there was no right to privacy contained in our Constitution. Since these were eight and six judge benches of the Supreme Court, every subsequent court had to deal with this confusion as best they could.

In the subsequent case of Gobind v. State of Madhya Pradesh, a three-judge bench, mindful of its inability to overturn a judgement of a larger bench, skirted around the inconsistency by 'assuming' that the right to privacy was protected under the constitution - relying on the first part of the Kharak Singh judgement without specifically calling out it's inconsistency with the second. Many smaller benches followed suit building on these principles to articulate a fundamental right of privacy in the context of medical privacy, matrimonial privacy, reputational privacy, privacy of sexual orientation and many more. However, given that this jurisprudence had been on uncertain foundations, it was always susceptible to challenge.

The task before the nine-judge bench in the present case was to settle the law once and for all. They did so emphatically - over-ruling both MP Singh and Kharak Singh to the extent that those decisions had held that there was no fundamental right to privacy. They also over-ruled the ADM Jabalpur case - a decision that allowed for fundamental rights to be suspended during a State declared emergency and called into question the judicial reasoning in the Naz Foundation case that had suggested that the 'minuscule minority' LGBTQ community was not entitled to a right to privacy. This decision has connected our privacy jurisprudence over the years with our international commitments and established our conformity with comparative laws around the world.

Key Findings in the Judgement

The judgement was unanimous with all nine judges concurring with the final order. However, six judges - Justice Chandrachud, Justice Nariman, Justice Chimaleshwar, Justice Kaul, Justice Sapre and Justice Bobde, wrote separate opinions covering a wide range of issues.

The key points of the judgement are summarized below:

(a) Right to Privacy - A Fundamental Right

The Supreme Court confirmed that the right to privacy is a fundamental right that does not need to be separately articulated but can be derived from Articles 14, 19 and 21 of the Constitution of India. It is a natural right that subsists as an integral part to the right to life and liberty. It is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/ she makes. It protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc. Therefore, any action by the State that results in an infringement of the right to privacy is subject to judicial review.

(b) Not an Absolute Right - Subject to Reasonable Restrictions

The Supreme Court was at pains to clarify that the fundamental right to privacy is not absolute and will always be subject to reasonable restrictions. It held that the State can impose restrictions on the right to privacy to protect legitimate State interests but it can only do so by following the three-pronged test summarized below:

  1. Existence of a law that justifies an encroachment on privacy;
  2. A legitimate State aim or need that ensures that the nature or the content of this law falls within the zone of reasonableness and operates to guard against arbitrary State action; and
  3. The means adopted by the State are proportional to the objects and needs sought to be fulfilled by the law.

Consequently, all State action that could have an impact on privacy will now have to be measured against this three-fold test. This is likely to have an impact on several ongoing projects including most importantly, the Aadhaar identity project.

(c) Other Incidental Implications

There are several additional implications of this judgement on matters incidental to the principal issue decided by the Court:

  1. By expressly recognising an individual's right to privacy regarding his sexual choices, the judgement is likely to have an impact on the petition pending before the Supreme Court on the de-criminalisation of homosexuality in India.
  2. To the extent that the judgement has stated that the State cannot interfere in the food choices of an individual it will have an impact on the various cases protesting the ban on beef imposed by certain States.
  3. The judgement has also made several observations on the complex relationship between personal privacy and big data, particularly in the context of how the judicious use of these technologies can result in the State achieving its legitimate interests with greater efficiencies.
  4. It has also recognized the impact that non-State actors can have on personal privacy particularly in the context of informational privacy on the Internet. While fundamental rights are ordinarily only enforced against actions of the State, given the broad language of the judgement and the extent to which informational privacy has been referred to in the judgement, there is concern amongst certain experts that these principles will extend to the private sector as well.

Recognising the complexity of all these issues, the Court highlighted the need to enact a comprehensive legislation on privacy and noted that the government has already appointed a committee under the chairmanship of retired Justice BN Srikrishna to look into these matters. Given this strong direction from the Supreme Court, it is likely that the Government of India will double down on its efforts to enact a comprehensive privacy legislation.

Impact

The immediate impact of this judgement on businesses is likely to be limited. The decision was issued in order to set at rest an unsettled position in law that had a bearing on a number of cases currently before various courts of the land. Now that this has been done, each of those cases will be decided on their merits relying on the wealth of opinions expressed in the present judgement. Therefore, in the near future, we are likely to receive a series of judgements on a wide range of matters that have a bearing on different aspects of privacy which will offer greater clarity on the manner in which Indian courts will look at these issues.

It is also clear, given the express directions of the Supreme Court in this regard, that the government is likely to enact a comprehensive privacy law based on the recommendations of the Justice Srikrishna committee. With this, the privacy obligations of corporations towards their customers and employees is likely to be clarified and a new regime for the protection of personal privacy established.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.