In the 1950s and 60s lawmaking in the United States underwent an upheaval for the better. The US Supreme Court at the time, led by Chief Justice Earl Warren is credited with creating some of the most progressive civil liberties jurisprudence of the century. The Warren Courts also significantly expanded the notion of the right to privacy by unshackling it from physical concepts like location and territory – instead privacy was conceived as a penumbral right emanating from multiple constitutional guarantees. It is no coincidence that the nine-judge bench of the Supreme Court of India that unanimously recognised privacy as a fundamental right, has made several references to the Warren Court's decision in Griswold vs Connecticut. The Supreme Court's ruling is momentous in more ways than one and is perhaps one of the most progressive decisions in recent years. But while this may be a judgement for the ages, it is not really one that serves us well for here-and-now concerns.
The Court has effectively determined the broad contours of the right to privacy, but in the process has also preemptively affirmed the constitutionality and embraced the existing flaws of the Aadhaar initiative.
First, the good news. The court has specifically recognised privacy within Part III of the Constitution, both granting it the highest levels of protection and future-proofing it against the whims of an intrusive government. Overturning its earlier decisions in MP Sharma vs Satish Chandra and Kharak Singh vs The State of UP, the bench has recognised that the right to privacy has been guaranteed under the Constitution as is. Justice Chandrachud who delivered the majority opinion (while all judges agreed with him, six have delivered individual opinions), held that no Constitutional amendment or parliamentary intervention is necessary for this recognition. This view holds forth that our Fundamental Rights have always guaranteed privacy and that the right primarily resides under Article 21. The court clarified in no uncertain terms that the right to privacy, much like the right to life, emerges not merely from a State guarantee but by virtue of one's very existence.
In the same vein as RC Cooper and Maneka Gandhi, the judgement is likely to determine the course of a vast amount of constitutional litigation in future having added depth to the reading of fundamental rights as a whole. More relevant to the current discourse, however, is the reference that the court makes to Constitutional rights in the digital space and necessity to revisit them.
While the apex court's ruling is being lauded across the board, ironically even the Government of India and the UIDAI have hailed the judgement – it is important to pause and reflect on the practical ramification of this 547 page treatise. The perceived impact of the Supreme Court's ruling is neutered by the exception it has seemingly made for Aadhaar – a question that formed the basis of this legal battle. Justice Chandrachud in the judgement has held that a new data protection regime must balance the right to privacy against the State's "legitimate aims" for ensuring national security, preventing the dissipation of social welfare benefits and encouraging innovation and the spread of knowledge. This curious motley of phrases is likely to not only be the subject of extensive litigation in the years to come but also save the Aadhaar program from a constitutional disqualification.
The genesis of the Supreme Court's foray into this Constitutional rabbit hole was spurred by the government's chosen litigation strategy – one that involved questioning the legal existence of a fundamental right to privacy. In the coming months, the government will recalibrate its strategy to instead have the collection of biometrics under the Aadhaar program recognised as a legitimate aim of the state and a reasonable restriction on an individual’s privacy. As a consequence, it is unlikely that we will see the striking down of Aadhaar's mandatory linkage with essential services.
This is not to say, however, that the ruling will have no impact on the relationship between the State and the citizen. The specific recognition of bodily integrity and informational autonomy within the right to privacy will affect a lot of the pending litigation before Indian courts. Significantly, the Court's criticism of its previous judgement in Suresh Kumar Kaushal vs Naz Foundation, will help in the recognition of Constitutional rights of the LGBTQ community.
The court besides identifying a negative obligation on the State restraining it from violating an individual's right to privacy, has also identified a positive one, where the state has to take all necessary measures to safeguard it. In doing so, the Court has proven its willingness to intervene in the relationship between users and data collectors. This will change the nature of the State's involvement in the pending Whatsapp Privacy litigation, from what was earlier considered a purely private contractual matter. While companies will be held to a higher standard, it will also be a confusing one and a spate of litigation in lower courts will occur as a result until the government finalises a new law on data protection.
Meanwhile, as the Supreme Court considers the legality of Aadhaar, it must remember that it has identified an unqualified right to privacy and not go out of its way to salvage an imperfect biometric ID project.
(Lawyers by training, Bedavyasa Mohanty (@darth_beda) and Madhulika Srikumar (@madhumachi) are with the Cyber Initiative, Observer Research Foundation. Views expressed are personal)