Source: Ideas and Institutions Issue #16
Analysis
Five Years of the Fundamental Right to Privacy: The Development of Privacy Rights Since the Supreme Court’s Landmark Judgment
On August 24, 2017, the Indian Supreme Court issued a landmark judgement holding that the Indian Constitution guarantees a fundamental right of privacy to each individual. The judgement, Justice KS Puttaswamy v Union of India, was issued by a nine-judge bench; there were six separate opinions written, each affirming a fundamental right to privacy. How has the right to privacy developed since this landmark judgement? How do these developments reflect on the reasoning of the Supreme Court in Puttaswamy?
In this piece, I analyze some important judgements of the Supreme Court and various high courts where state action has been challenged on the grounds that it violated the fundamental right to privacy. In doing so, I attempt to map the landscape of cases where privacy rights have been allegedly infringed, and how courts have understood and applied the tests for studying privacy-violating state action in Puttaswamy.
One motivation to study these cases is to understand whether the test for examining state action in Puttaswamy is a good test. By “good” I mean whether the test creates certainty about what kinds or categories of state actions will be considered violative of the right to privacy. I have argued earlier that the judgement, in fact, fails to do so. The Puttaswamy judgement lays down a three-fold test. If the state action meets all three parts of the test, it is considered a constitutionally permissible privacy infringement. The three parts of the test are: (a) a valid law must exist to permit the state action, (b) there must be a legitimate state aim for which the restriction on privacy is justified, and (c) the means adopted under the law must be proportional to the objective of the law.
My argument against this being a good test is that it is inherently incapable of creating certainty. Necessity and proportionality are tests that have to be applied to specific factual situations and doing so gives considerable leeway to judges to decide what is necessary and proportionate. This in turn makes it difficult to create a privacy jurisprudence that is essential for informing society and government about what state action is permissible. My analysis of the judgements that follow seeks to understand whether my hypothesis is true.
A necessary caveat Is in order—the scope of analysis is not exhaustive. I cover close to a dozen interesting judgements of the Supreme Court and some high courts, but the total number of cases concerning state action restricting the right to privacy is much higher. Hopefully, this is a starting point for more exhaustive research on this issue. I begin by trying to map the landscape of cases in which the right to privacy is alleged to be violated.
The Right to Privacy since August 2017
Litigants have challenged state action and legislation on the grounds that they violate the right to privacy in many significant cases. In some of these, the right to privacy was a central challenge to the validity of legislation and state action, for example, in the judgement on the constitutionality of Aadhaar (known as the Second Puttaswamy case, decided September 2018). Similarly, in its judgement decriminalizing adultery (Joseph Shine v. Union of India, September 2018), the Supreme Court used the three-fold test to invalidate the relevant provisions of the Indian Penal Code, 1860. In another case, the Allahabad High Court used the test to decide whether the state government’s action of placing banners with the personal information of those engaged in vandalism was constitutional (IN RE: Banners Placed on Roadside in the City of Lucknow v State of Uttar Pradesh, Allahabad High Court, March 2020).
In a subset of these cases, the Supreme Court did not apply the Puttaswamy test because the Puttaswamy judgement had itself identified certain areas where the right to privacy was protected. For example, in Navtej Singh Johar v Union of India, where the court invalidated the criminalization of homosexuality, the court cited the Puttaswamy judgement’s observation that sexual orientation is a facet of individual privacy to strengthen its argument for decriminalization.
In another category of cases, the right to privacy was supplemental or additional ground for deciding constitutional rights. For example, in Common Cause v Union of India (March 2018), the Supreme Court adjudicated on the question of whether Article 21 of the Constitution (Right to Life) includes a right to die and whether passive euthanasia is permissible. In this case, the court discussed the right to privacy to find an additional source for locating individual autonomy in relation to his or her death.
The gamut of cases examined for this piece fall broadly under these categories. This covers a case where the Supreme Court considered whether details of assets of judges were information accessible under the Right to Information Act, 2005 (CPIO, Supreme Court v Subhash Chandra Agarwal, November 2019). It also covers challenges to different forms of police action—a mandate directed at owners of dance bars to install CCTVs inside their premises (Indian Hotel and Restaurant Association v. State of Maharashtra, January 2019), the interception, interference, and destruction of electronic messages by investigative agencies (Vinit Kumar v Central Bureau of Investigations and Others, Bombay High Court, October 2019), and a direction to shut down the internet to maintain security and public order (Anuradha Bhasin and Others v Union of India, January 2020). Finally, cases pertaining to individual privacy arising out of measures to contain the spread of COVID-19 that challenged (a) vaccine mandates by some state governments (Jacob Puliyel v Union of India, May 2022) and (b) the practice of putting up posters outside homes of individuals testing positive for COVID-19 (Kush Kalra v. Union of India, December 2020).
As one would expect, courts in each of these cases have used the Puttaswamy judgement on privacy to the specific factual circumstances in varying ways. It is, however, hard to discern whether this application creates a new set of principles that takes privacy jurisprudence further in a consistent and predictable manner. Specifically, as the following analysis shows, it is hard to locate this consistency and predictability even in the category of cases where courts have used the three-fold test laid down in Puttaswamy.
The application of the three-fold test and a lack of certainty
Court decisions that have used the three-fold test highlight its problems with respect to the need for creating certainty through a body of jurisprudence. Each of the cases highlights the problem in understanding “necessity” and “proportionality.” I take three examples from the cases discussed above to explain this issue.
In Puttaswamy II, where the Supreme Court decided on the constitutional validity of Aadhaar, the court upheld certain uses of Aadhaar as being proportional to its objectives of implementing social welfare delivery but struck down certain uses as being disproportionate. For example, the mandatory linkage of Aadhaar with PAN numbers was upheld as proportional, while the mandatory linkage of Aadhaar with bank accounts was held to be disproportionate. From this, it is unclear what lessons can be drawn about the proportionality of future state action in similar cases. If there is a clear underlying principle that enabled the court to differentiate between linking Aadhaar with PAN numbers and bank accounts, the court did not explain it in a manner that can be applied usefully in the future.
Similarly, in Joseph Shine v UOI, the Supreme Court struck down the provision criminalizing adultery stating that its criminalization was unconstitutional on both grounds—it was not necessary, and it was disproportionate to the negative effects of adultery. The court said this was so, especially since a civil remedy (divorce) was already available as an alternative.
Could one therefore surmise from this reasoning that all laws criminalizing human conduct, for which civil remedies exist, will be considered unnecessary and disproportionate, if they impinge on individual privacy? Again, in this judgement, it is unclear whether the court is creating a general principle for how to understand necessity and proportionality for future cases or whether its rationale is applicable only to the specific case before it.
The Allahabad High Court struck down the Lucknow administration’s move to put up banners containing the personal information of individuals accused of vandalism in IN RE: Banners Placed on Roadside in the City of Lucknow v State of Uttar Pradesh. The court held that first, there was no law that enabled the local government to take such a step, so the state action did not meet the first part of the three-fold test. Then the court went further to examine necessity and proportionality and held that the publication of personal information in public was not necessary to achieve the state’s desired objective. It also held that the state action was disproportionate because it chose to publicize the personal information of those accused of certain crimes but not of many other individuals accused of even more serious crimes.
It is unclear, again, how to derive a general principle out of the court’s reasoning on necessity and proportionality. For example, the judgement does not explain why publicity is not necessary to meet the state’s objective. The government argued that its objective behind the publicity was to “. . . deter the mischief mongers from causing damage to public and private property.” The court did not respond to this argument. It instead reasoned that no necessity exists because the accused are not fugitives.
In these and many other cases where courts have examined state action infringing privacy using the three-fold test from Puttaswamy, there is a clear lack of developing jurisprudence. In each specific case, courts have either upheld or invalidated state action based on the facts. But it is not clear how this body of judgements leads to predictability and certainty about state action on privacy in the future. Instead, the use of the three-fold test ensures that judges enjoy wide discretion in either deferring to state action or to scrutinize it strictly.
I am grateful for the research support provided for this piece by my Carnegie India colleague Tejas Bharadwaj.
—By Anirudh Burman
Review
Markets and Morality in Edmund Burke’s Thought
In the anglosphere, the eighteenth-century Irish philosopher-statesman Edmund Burke is often called the father of modern conservatism. Russell Kirk attributed to Burke the basic impulse that drives conservatism—“preservation of the ancient moral traditions of humanity.” Burke, according to Kirk, had a talent for “re-expressing convictions to fit the times,” instead of remaining attached to fixed dogma. Burkean conservatism mixes an openness to adaptive reform with a concern for moral traditions.
A recent book, Commerce and Manners in Edmund Burke’s Political Economy by Gregory M. Collins, a lecturer at Yale University, highlights this quality of Burke through an analysis of his thoughts on political economy. Collins shows that Burke understood the power of modern industry and market economy quite well and was a lifelong advocate for harnessing it for material improvements, but he also called for moral and political limits on this power.
Bibliographies of writings on Burke run into hundreds of pages. He is neither forgotten nor underrated. However, an argument can be made, and Collins makes it, that Burke’s thoughts on political economy have not received a comprehensive treatment. Although there are many papers, and a few books, that consider his thoughts on political economy, nothing as comprehensive as Collins’s book exists. Collins refers to Burke’s writings, contemporary documents, commentaries by others, empirical data on contemporary political economy, and other sources to paint a nuanced picture of Burke’s views on the subject.
Collins analyzes Burke’s statements on the commercial and financial matters to bring out the profundity and underlying unity of his thought. Collins suggests, “Burke’s remarks on political economy illustrate an underlying coherence that incorporated, but transcended, elements of prudence, utility, and tradition.” He was, Collins writes, “a profound thinker on the science of political economy.”
The book shows that Burke had an exceptionally clear understanding of the working of markets. He saw the power of the market economy and advocated for harnessing it. In domestic markets, he called for minimizing government intervention and allowing the laws of supply and demand to circulate goods, including in areas of scarcity. He believed that market competition lowers the cost and enhances the quality of goods and that voluntary exchange advantages members from different social orders, including the poor. He presented a spirited defense of the much-maligned middlemen, seeing them as responsible for increasing the efficiency of the flow of provisions.
In a Smithian refrain, Burke saw in the working of the markets a providential force—“benign and wise disposer of all things”—that transforms individual self-interest into collective advantage. He saw the government’s role in securing private property, insisting that “the great use of Government is as a restraint.” He favored a limited government that establishes and carries out “definable tasks in accord with its responsibilities and capabilities.”
Interestingly, while supporting modern commerce, Burke was a believer in the primacy of landed property, seeing it as “the counterpoise to the political ambitions of the Crown.” The aristocracy of landed property could, in his view, protect constitutional government and constitutional liberty against overreach by the monarchy. He also saw landed estates as sources of agricultural and technological innovation, with inherited land providing the stability that allows for the gradual expansion of commerce across generations.
On foreign trade, Burke generally argued for relaxation of barriers but only if this did not subvert national security and national honor. Believing that the wealth of nations derives from international trade, he opposed the mercantilist pursuit of balance of trade. He also suggested that trade can ease social tensions and strengthen relations between different nations but only when they have a joint interest in forging such relations. Burke’s thought on matters of trade was “subordinate to his broader defense of the British Empire.” He did not believe that commerce should dictate foreign policy. He supported a policy that promoted trade with friendly nations but displayed “greater prudence in enhancing trade relations with global adversaries.” If nations hostile to Britain aspired to use trade to gain imperial and military advantages over it, Burke was keen on sacrificing some commercial prosperity for the sake of “preserving the integrity and security of the British Empire.”
Burke did defend a monopoly in foreign trade, most famously for the East India Company. He justified it by highlighting the risks of trading in distant lands. However, even in these places, Burke was opposed to the control of internal trade. While he supported commercial privileges for the East India Company, he critiqued the firm’s despotic acts toward Indians, made possible due to a mixing of economic power with political monopoly. He advocated for freeing Indians from the internal monopoly of the East India Company.
Burke opposed the intrusion of abstract rationality into markets. Collins sees this as similar to Burke’s condemnation of the French Revolution. In both critiques, Burke suggested that “a corrupted form of theoretical reason scorned the infinite complexities of human activities.” He believed that man’s “private stock of reason” limited the understanding of complex economies and societies. Therefore, “the imposition of abstract reason on civil society unsettled the stable foundations for commercial enterprise and social union.”
While there is a predominance of utilitarian interpretation of Burke’s thoughts on political economy, Collins shows that he undergirded a utilitarian perspective with virtue ethics and a concern for community and political values. Burke believed that commercial culture cannot sustain itself without prior ethical commitments and that religion and virtues are more important for the growth of civil order than material affluence. He opposed the slave trade, seeing it as a violation of the moral law. Burke wrote, “If wealth is the obedient and laborious slave of virtue and of public honor, then wealth is in it’s place, and has it’s use: But if this order is changed, and honor is to be sacrificed to the conservation of riches, riches which have neither eyes nor hands, nor any thing truly vital in them, cannot long survive the being of their vivifying powers, their legitimate masters, and their potent protectors. If we command our wealth, we shall be rich and free: If our wealth commands us, we are poor indeed.”
Burke was generally opposed to government-directed redistribution of wealth, but he believed that the rich are trustees of the poor, with a moral duty to provide charity to them when the laws of supply and demand are inadequate to meet their needs. Collins shows that Burke also practiced this in his own life. His view was that commerce can be harnessed for improving material wealth in a social order, but the imperatives of market competition should not do away with the “pre-commercial ties of love and sentiment.” Certain unconditional ethical commitments must precede the fulfillment of voluntary contracts. “Commonwealths are not physical but moral essences,” Burke wrote.
The picture that emerges from this book is that Burke cautiously but surely embraced the big changes being brought about by the industrial revolution and the expansion of the market economy. Burke entered Parliament just when the first Industrial Revolution was beginning to intensify and the market economy was spreading. Burke’s understanding and defense of commerce shows considerable acuity. It also took courage, because the economic changes were also leading to social upheavals. Burke believed in the possibility of progress—a society evolving by “renewing and modifying the accumulated traditions of the past in order to meet the needs of contemporary circumstances.” Thus, the stereotyping of Burke as a defender of an old order is misplaced.
Most of Burke’s insights on political economy were expressed during his participation in lawmaking as a politician. He served in the Parliament for about three decades. During this time, many issues, ranging from poor laws to trade restrictions, came to his attention. He also ran a 600-acre farm, of which he himself cultivated 400 acres. Collins describes how Burke thought about an issue, “He concentrated his mind on the particular circumstances and details at hand, and then broadened his gaze to acquire an understanding of their implications for Britain, its empire, the foreign arena, and civilization as a whole.” He could often see beyond the first-order effects.
Some scholars have pointed at the “Burke-Smith problem”—Adam Smith served as an intellectual inspiration for French revolutionaries, but Burke was the most celebrated critic of the revolution even though he endorsed several views similar to Smith’s. Collins shows that Burke tried to “blend liberal commercial principles with the wisdom of the past” to minimize the tensions between traditional virtue and modern economies. He believed that a properly balanced state could mix “market vibrancy with the pre-commercial pillars of religious instruction, social affection, and aristocratic moderation.” Collins therefore suggests that there was no Burke-Smith problem
Burke envisioned precommercial moral values shaping preferences, which are partly fulfilled by market exchange and partly by other forms of social action while being situated in the political order of an honorable nation. He lived at a time when many fundamental choices were being made. Certain paths were chosen, and since then many places in the world have joined or been brought into that history. Crucial choices are still being made, and we need re-expressions of the fundamental convictions to fit our own time and place.
—By Suyash Rai