Legitimate and Compelling State Interest: The Test for Aadhaar

Kanu Agrawal

Privacy, despite not being present in the core text of the Constitution due to the exclusion by the Constituent Assembly, has been held to be a fundamental right. The nine-judge bench interprets ‘life and liberty’ in Article 21, ‘dignity’ mentioned in the Preamble and the freedoms under Article 19, to include privacy as the core of human personality and dignified existence.

Much has been written about the highly persuasive judgement from the angle of expansion of rights jurisprudence. Fundamental rights are not unqualified. A common feature across various fundamental rights is the permissibility of the State intervention within the constitutionally defined limits. This interplay between a citizen’s right in absolution and the State’s regulation of the same, forms the bedrock of constitutional debate.

One of the common threads that runs through Part III is the aspect of reasonability and non-arbitrariness. The corollary of this, in turn, allows State intervention in the exercise of fundamental rights if the legislation falls within the judicially defined limits of reasonableness and is not manifestly arbitrary. The identification of a privacy right under Article 21 and Article 19 needs to be contextualized in light of the permissible state actions under fundamental rights. Understanding the limits of the right and the power available to the State in protecting, furthering, and restricting aspects of privacy is important due to its obvious impact on the permisibility of the Aadhaar Act.

During the hearings, the Union pointed out certain discrepancies in the judgments on the right to privacy. The reference was made to the nine-judge bench, not to test the validity of the Aadhaar Act itself, but to the purely legal question of resolving the conflicting views of the Supreme Court in the MP Sharma and Kharak Singh cases on one hand, and the judgments delivered subsequent to the Govind case on the other. It was admitted by all parties involved, including the bench, that the jurisprudence surrounding privacy is mired in doubt.

It is easy to doubt the intentions of the Union of India with regard to the right to privacy, forgetting that the strength of the adversarial process lies in collating opposing opinions and laying down a robust scheme. The Union would have done a great disservice to the concept of privacy if they failed to oppose it, leaving the jurisprudential plane of privacy mired in doubt. The potency of the treatise laid down by Justice DY Chandrachud is constructed on the practicalities of the conflict between the views. A failure to argue not only results in weak precedents, but also erroneous law.

In theory, while defining the limits of privacy, the bench has used two peculiar phrases, ‘zone of privacy’ and ‘legitimate expectation’ of privacy. Simply put, the extent to which an individual expects privacy in a public street may be different from that which she expects in the sanctity of her home. The reasonable expectation of privacy test was formulated in the Katz v. United States which held that a legitimate/reasonable expectation would mean that a person has exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as “reasonable.”

In the Canara Bank case, former Chief Justice of India RC Lahoti referred to the the Katz doctrine of zone of privacy leading up eventually to a “reasonable expectation of privacy”.  While discussing the access to bank records, the Court held even when information is provided by an individual to a third party (in that case a bank), it carries with it a reasonable expectation that it will be utilised only for the purpose for which it is provided. The Court clarifies that the sphere of privacy stretches only to those matters to which a reasonable expectation of privacy may be attached and there may be other matters which fall outside the reasonable expectation paradigm.

The Court, in the privacy matter, primarily traces privacy under Article 21, and therefore, the ambit of ‘the procedure established by law’ gains significance. Post the RC Cooper case, the cleaving of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the inter-relationship between rights. The said cleaving has brought about the requirements of fairness and non-discrimination, and animates both the substantive and procedural aspects of reasonableness and arbitrariness. Therefore, the Court recognizes the doctrine in the Maneka Gandhi case, and states that procedure, through which privacy may be curtailed, must not just be procedure established by law, but also that such law ought to be substantially ‘just, fair and reasonable’.

Further, the Court states that a law limiting privacy would be open to a substantive challenge on the ground of arbitrariness under Article 14. The Court cautions against the danger of construing this as an exercise of ‘substantive due process’ as it was consciously not accepted when the Constitution was framed. The Court, in opposition to Justice Nariman’s judgment in Mohd. Arif case and the Shayara Bano case, states that the reference to ‘substantive due process’ in some of the precedents is essentially a reference to a substantive challenge to the validity of a law. The doubts over the applicability of ‘substantive due process’ remain, but the impact of these recent judgments, especially canvassing manifest arbitrariness, excessiveness, proportionality and legitimate state interest under Article 14, would depends on the facts and circumstances of each case.

Perhaps the most interesting feature of the judgment is the use of the doctrine of ‘legitimate state interest’. This would have large scale implications on the Aadhaar hearing considering the overwhelming state interest present therein. The Court expressly states that a balance must be struck between the interests of the individual and that of the State.

Interestingly, Article 8 of the European Convention on Human Rights, which was elaborately referred to, provides that interference in privacy by a public authority could be justified in the interests of national security, public safety or the economic well-being of the country. The European Court, in Uzun v Germany, wherein data from Global Positioning System was obtained by the investigation agencies and was used in a criminal proceeding against the accused who was suspected of involvement in bomb attacks, unanimously concluded that there had been no violation of Article 8.

As per Chandrachud J, while referring to the doctrine of ‘legitimate state interests’, the Court refers to the three step process where firstly, there must be a law in existence to justify an encroachment. Secondly, there must be a legitimate state aim, ensuring that the restriction of the statute falls within the zone of reasonableness mandated by Article 14. Thirdly, the means which are adopted by the legislature must be proportional to the object and needs of the legislation/provision.

In essence, the pursuit of a legitimate state aim ensures that the law does not suffer from manifest arbitrariness and disproportionality.

In a bid to limit the extent of privacy, the Court expressly cites national security as a ‘legitimate state interest’ where the State may have justifiable reasons for the collection and storage of data. More importantly, in a veiled reference to Aadhaar, the Court defines the extent of ‘legitimate state interest’ in a social welfare state. The Court states that if the government embarks upon programmes which provide benefits to impoverished and marginalised sections of society, then there is clearly 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.

The Court tackles the concerns of ‘data mining’, stating that the object of ensuring that resources are properly deployed to legitimate beneficiaries, is a valid ground for collection of authentic data. Interestingly, the Court carves out a distinction between anonymity and privacy, stating that if the State preserves the anonymity of the individual, it could legitimately assert a valid state interest to design appropriate policy interventions on the basis of the data available.

This begs the question, what is the test of privacy? Justice J Chelameswar, in his concurring opinion, lays down the options which can be canvassed for limiting the right to privacy. These include a challenge under Article 14 as a manifest arbitrariness enquiry, the challenge on unreasonableness as per the express provisions of Article 19, a challenge on grounds of the limitations not being just, fair and reasonable basis as per Article 21’s procedure established by law, and finally, a just, fair and reasonable standard per Article 21 including an amorphous standard of ‘compelling state interest’.

He states that the doctrine of ‘legitimate/compelling state interest’, is the highest standard of scrutiny which is to be adopted. This effectively creates a field for limiting the possibilities of challenge on the ground of absence of a legitimate state interest.

The Court has, in protecting the powers of the State in theory in the judgment, paid heed to the arguments advanced by the Union. The theory of zone of privacy, manifest arbitrariness and legitimate state interest clearly provide for some degree of State intervention. The reference has been answered. The test for the Aadhaar Act is clear. The result remains to be seen.

Kanu Agrawal is an advocate at the Supreme Court of India.

The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.