Constitution’s dark matter et al: Sajan Poovayya decodes the Right to Privacy judgment

Aditya AK August 26 2017

Having appeared and argued on the petitioners’ side of the bar, Senior Advocate Sajan Poovayya had the opportunity to reflect on every single argument made on either side, during the hearings in the historic Right to Privacy matter.

“I consider myself privileged for having had the opportunity to be a part of this historic journey. Not often do nine judges of the Supreme Court convene to consider a matter so crucial to human life as the Right to Privacy; and render a unanimous verdict, although from different perspectives. People living in this day and age are lucky to have witnessed a constitutional development of such magnitude.”

He is in awe of the fact that a judgment of such proportions was rendered in such a short span of time. And that, he says, has not compromised the quality of the judgment. Not in the least.

“A great deal of thought has gone into each of the judgments, despite the constraints of time. They did it in just over three weeks, notwithstanding their regular workload. Hats off to all of them!”

As a natural reaction, the press and the citizenry alike are contemplating the impact of the judgment, merely to matters of immediate concern. This, Poovayya says, is a great disservice to the verdict.

“If we look at this judgment from the perspective of how it will impact claims or disputes that are mundane to everyday life, we will miss the wood for the trees. To juxtapose superlative constitutional propositions like the present verdict to the limited questions of daily life that are boggling us, will be a knee-jerk reaction. I think it is myopic to do so.”

He opines that the Privacy verdict will continue to influence constitutional jurisprudence in the country for generations to come and may become the bedrock for civil society discourse, just as Kesavananda did many decades ago.

He goes on to say that many profound aspects of constitutional jurisprudence, propounded in each of the six judgments rendered in Justice Puttaswamy are yet to be noticed and, as of now, remain under the radar.

“You needed a Maneka to fully appreciate Rustom Cavasjee Cooper. Hopefully, we will not need another insightful judgment to appreciate the profoundness of the present verdict.

Most of the press is yet to delve deeper into the judgment. Merely quoting what they said and not understanding what they meant, would be to render lip service.” 

And so, he begins decoding passages from the 547-page judgement that have hitherto failed to receive their due attention. The constitutional law geek in him can barely contain itself when it comes to one particular judgment, that of Justice Jasti Chelameswar.

Justice Chelameswar’s judgement

Justice Chelameswar

The representation of the Right to Privacy as having three aspects – repose, sanctuary and intimate decision-making is a fantastic way of covering all aspects of the right. He says repose is a ‘freedom from unwarranted stimuli’, which means much more and travels far beyond the freedom to be left alone. The freedom from unwarranted stimuli establishes a subterranean limitation on not just State’s power but also the power of non-State actors. The judgment makes the freedom from unwarranted stimuli a facet of Article 21.

Justice Chelameswar’s judgment transcends the jurisprudence of Maneka. In paragraph 29 of his judgment, he denotes four factors that circumscribe the State’s power as a direct consequence of the inter-relationship between Article 19 and 21.

Justice Chelameswar also makes a reference to constitution’s dark matter. “The implications arising from the scheme of the Constitution are ‘Constitution’s dark matter’ and are as important as the express stipulations in its text.” Therefore, dark matter refers not to the expression but to the underlying ethos, with Kesavananda being one of its most outstanding expositions.

Constitution’s dark matter will become a catchphrase for every constitutional lawyer in the country. This reminds me of Justice Khanna’s dissent in ADM Jabalpur, wherein he asserts that even in the absence of Article 21 in the Constitution, the State has no power to deprive a person of his life or liberty without the authority of law. It also reminds me of ‘The Invisible Constitution’ by Lawrence H Tribe.

By asserting that “man is not a creature of the State”, Justice Chelameswar brings the whole focus of the Constitution to its preambular values and consequently back to the people.

Justice Bobde’s judgment

Justice Bobde

Justice Bobde connects the right to two values: dignity and autonomy. He calls privacy an inalienable natural right, and thereby pitches the right at the highest possible threshold, simultaneously rooting it in the most supreme jurisprudential values. Justice Sapre agrees with him. I don’t think any lawyer pitched the argument to that level. This shows that the judgment is more than an amalgam of the arguments addressed in court.

Justice Bobde then propounds that, “privacy has a deep affinity with seclusion”. This explains what the whole concept of right to privacy, as a fundamental right is. Justice Bobde also says, “it is not possible to truncate or isolate the basic freedom to do an activity in seclusion, from the freedom to do the activity itself”.

Justice Bobde says seclusion is different from secrecy and secrecy is not a pre-condition to assert the right to privacy. Further, private information is not necessarily information that is inaccessible to others. Therefore, ‘accessibility of information’ and ‘privacy of information’ will not henceforth work at cross purposes. The idea that publicly accessible information is denuded of privacy protection is now done away with and this certainly would have implications vis-à-vis non-State actors as well.

Justice Chandrachud’s judgment

Justice Chandrachud

Justice Chandrachud says that dignity is so fundamental that it permeates the core of the rights guaranteed under Part III. There was a huge debate in Court as to where the right to privacy will reside. Justice Chandrachud has clearly said that it resides in the core of all fundamental rights. This manifestation of privacy is of great value.

Justice Chandrachud lays great emphasis to privacy in a digital era. His opinion on the limitation of State’s power in an era where surveillance technologies have vastly developed, is a trendsetter. In doing so, he not only relies extensively on American jurisprudence but takes it further to suit the Indian constitutional matrix.

Justice Kaul’s judgment

Justice Kaul

Justice Kaul has done a phenomenal job in terms of relating privacy expectations and data protection. He links possible invasion of privacy by the State with profiling of individuals, through collection and processing of data. This means that there cannot be surveillance of individuals through big data that is being collected and collated. This is an amazing expansion of the right to privacy.

He also talks about computational analysis of data revealing patterns of association, which is nothing but profiling, and says it is more dangerous than pure form of surveillance itself. It is heartening to see that jurisprudence is embracing technology as fast as we citizens are.

Justice Sapre’s judgment

Justice Sapre

Justice Sapre concurs with Justices Chelameswar, Bobde, Nariman and Chandrachud, and goes on to trace the Right to Privacy to the preambular values of our Constitution. Liberty of thought and dignity of individual becomes the fulcrum and the right further beautifully balances itself through its emanation from the rights enshrined in Articles 19 and 21. A puritan, yet practical rendition of the law.

Justice Nariman’s judgment

Justice Nariman

Justice Nariman’s judgment begins with the ‘Three Great Dissents’, of Justice Fazl Ali in Gopalan; Justice Subba Rao in Kharak Singh; and Justice Khanna in ADM Jabalpur. Based on these, Justice Nariman constructs a jurisprudential ladder to reach the pedestal of privacy as a fundamental right. Justice Nariman observes that in the RC Cooper-Maneka Gandhi era, privacy cannot be said to reside only in one Article. You can compare it with Justice Chelameswar’s judgment, in which the inter-relationship among the fundamental rights was transcendentally expounded.

Justice Nariman takes pains to document the legislative recognition of the Right to Privacy, with particular reference to the pre-Constitutional recognition thereof, concluding that it is too late in the day to go back on the repeated and continual legislative recognition of the fundamental Right to Privacy.

This novelty in approach should not come as a surprise, given that Justice Nariman had just a few days ago, in Shayara Bano, elevated the principle of manifest arbitrariness to a sword that can strike at the very root of arbitrary exercise of the power to promulgate plenary legislation.

From here, the conversation moves on to how the verdict will have an impact on other related issues, including those pending before the Supreme Court.

Aadhaar

Aadhaar

Aadhaar

In my view, the Privacy verdict does not automatically imply the validity or otherwise of Aadhaar. Justice Sapre cautions that a Reference Court cannot travel beyond the reference made and is confined to answer only those questions that are referred. Validity or otherwise of Aadhaar is a matter that is pending consideration and it would be improper for us to speculate on its outcome.

One thing however is clear: the Aadhaar architecture will have to be tested on the touchstone of privacy being a fundamental right. Only if it passes muster completely vis-à-vis that touchstone can Aadhaar in its present form and shape continue to prevail. Otherwise, it may need systemic changes from within, to make it compliant with our Constitutional matrix, as further propounded in the Privacy verdict.

Data Protection legislation

The opinions of Justices Chelameswar, Nariman, Chandrachud and Kaul indicate in different hues the multi-dimensional aspects of privacy as a fundamental right. Bodily integrity, decisional autonomy, and information privacy are a few of those hues. These can mix to generate innumerable tints, tones and shades.

Informational privacy right is not absolute just as any other fundamental right. Whilst the State can collect and collate this information, certain thresholds automatically come into play. For example, the State’s power will be restricted in terms of the nature of information that it can seek; the manner in which it can obtain such information; and once that information is received with consent of the individual, the manner in which it can be processed and used. We should not forget that it is the Privacy right that is fundamental and not the limitations that are imposable.

In framing data protection legislation, the Parliament must be conscious that technology today affords a phenomenal capacity to process data. Data collected over a period of time, in silos, can be amalgamated and processed to profile the citizen, which in turn may lead to surveillance. Such surveillance will certainly erode the freedom of thought itself and further chill expressive and associational freedoms. As Justice Chandrachud emphasises, this may alter the relationship between citizen and government in a way that is inimical to democratic society.

Therefore, when you are looking at data protection legislation, you should not look at data protection in an independent silo or matrix. There cannot be a doctrinal approach to the legislation. Fortunately for us, we have sufficient precedents on how USA, UK and the European Union have treated it.

At least three Judges in their judgments in the Privacy verdict, judgment have recognized the Right to Privacy as not just a vertical right vis-à-vis the State but also a horizontal right vis-à-vis non-State actors. It will therefore be imperative for the proposed legislation to take this aspect into consideration.

Overruling of ADM Jabalpur

Justice Chandrachud overruling a decision of Justice Chandrachud is the icing on the cake. Although ADM Jabalpur had lost all its vigour, given the subsequent constitutional amendments, it nonetheless remained as a verdict of the apex court. More importantly, the majority judgment continued to suppress the brave dissent of Justice Khanna. That is why the express overruling of ADM Jabalpur, by the nine judge Constitution Bench, specifically concurring with the minority judgment of Justice Khanna, is a watershed.

I don’t think any of us, when we commenced our arguments, thought that ADM Jabalpur would be overruled. However, on the very first day of the hearing, two of the nine honourable judges on the Bench (Justices Chelameswar and Nariman), specifically raised the issue of expressly overruling ADM Jabalpur, “Now that we are sitting as a nine-judge bench, don’t you think it is time that we expressly overrule it,” they asked. This is the beauty of our judicial system. That it emanated from the Court, before any counsel really sought for it, shows that our courts are extremely sensitive to citizens’ rights.

Section 377

I am reminded of the observation in Lawrence v. Texas to the effect that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. Section 377 IPC is a manifest illustration of this point.

The Privacy verdict clearly declares that the fundamental Right to Privacy includes a combination of bodily integrity and decisional autonomy. Justice Chandrachud emphatically observes that the reasons afforded in Suresh Kumar Koushal cannot be regarded as having a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. In my view, it would only be a judicial formality for Section 377 to be declared unconstitutional.

A potentially negative aspect of the verdict is that it may lead to the floodgates being opened for litigation before the Court. However, Poovayya doesn’t seem to think so.

“I don’t think so. In fact, unnecessary litigation will be curtailed by the clarity that this judgment has ushered in. Litigations emanate because of two things. One, an unclear rendition of the law, or doubts as to the legal contours; and two, doubts as to the limitation on State’s power. The limitation on State’s power should be clear i.e., thus far and no further. Consequently, it will lead to citizens challenging fewer actions, because the State will be circumspect in terms of how it acts.

Even assuming the verdict opens the floodgates for litigation. I think it will only be a temporary phenomenon, because once we have such a clear rendition of the rights, applying the same to factual contexts would not take much time. So, there may be a spike, but it will stabilise very quickly.”

As a parting thought, Poovayya highlights just how important the judgment is in the scheme of India’s constitutional jurisprudence.

“This is going to be the law of the land for the next 100 years. It will clearly change the way Indian civilization will develop. Let’s not forget that we are very young as a constitutional democracy.

As a constitutionalist, I am a firm believer in the concept of limited government. The declaration that privacy is indeed a fundamental right which resides in all rights contained in Part III clearly equips the Indian citizenry with a great deal of rights, and reciprocally, imposes a great deal of restrictions and limitations on the State. It is truly a watershed moment for the citizenry of the country.”

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