Not just Aadhaar, privacy verdict affects other issues too

The article was originally published on The Quint.

On 24 August, a nine-judge bench of the Supreme Court unanimously held that a fundamental right to privacy exists under Article 21 and Part III of the Constitution of India. The ruling by the constitutional bench was with respect to a reference order made by a two judge-bench in the ongoing Aadhaar case.

The petitioners in the Aadhaar case had argued that the programme was unconstitutional as it violated the right to privacy. On the other hand, the Centre had argued that there was no judicial clarity over the existence of a right to privacy.

Therefore, the matter was referred to a constitutional bench for its ruling. Now that the court’s position is clear, the hearings of the Aadhaar can go on taking the ruling into account. However, this ruling will have repercussions not just for the Aadhaar case, but a robust right to privacy can be instrumental in protecting numerous civil liberties in the time to come. The right to privacy, as argued before the court, is a multi-dimensional right which includes right against search and seizure, decisional autonomy, bodily integrity, and information self determination. These rights cut across a spectrum of issues of state intrusion and a unanimous recognition of this right will, hopefully, go a long way in countering them.

On Section 377 IPC

In 2013, in the Koushal v Naz Foundation case, the Supreme Court overturned a decision by the Delhi High Court which had read down Section 377 of the Indian Penal Code.

The Supreme Court’s decision reinstated Section 377, which criminalises sexual intercourse, saying it was “against the order of nature.”

The court held decisional privacy as one of the facets of the right to privacy, which is “reflected by an ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations.”

Before this, most the Supreme Court’s jurisprudence on privacy had been limited to privacy of home (private spaces) or communication. This clear endorsement of decisional privacy as a part of the fundamental right to privacy, along with Justice Nariman’s strong affirmation of the standards of arbitrariness (any law which is disproportionate, excessive… or otherwise manifestly unreasonable can be struck down) under Article 14, makes the position of the Supreme Court in Koushal untenable.

Speaking directly about the Koushal judgment, Justice Chandrachud, also writing for Justices Khehar, Agrawal, and Nazeer, states that sexual orientation is an essential attribute of privacy, and deems the reasoning in Koushal erroneous. A curative petition on the Koushal judgment is pending before the Supreme Court.

What This Means For Data Protection Law?

Interestingly, Justice Chandrachud, in his conclusion, states that the right to privacy has both negative and positive content.

While the negative content restrains the state from committing an intrusion upon its citizens, positive content imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. In this respect, the court holds that informational privacy is also a facet of privacy and commends the need for a data protection law.

What this means is that the terms of the data protection law, when it is enacted, could be open to challenge if the limitations are beyond the legitimate concerns of the state. Further, in cases of further delay in the creation of data protection legislation, this argument could be extended further by the courts to put in place some rules and regulations for data protection, as they have done in the past, with respect to prevention of sexual harassment in the Vishakha judgment and in the case of communication interception procedures in the PUCL case.

While fundamental rights are, for the most part, vertical rights available only against the state, in certain circumstances they have been held to also apply horizontally to private actors.

Justice Chandrachud is clear in his assertion that the right to privacy is also threatened by private actors, but it remains to be seen in what ways the positive obligations to protect this right is used to compel the state to take protective measures.

Search and Seizure Under Income Tax Act

Section 132 of the Income Tax Act gives income tax authorities ‘search and seizure’ powers in cases where after provision of notice, a person has not disclosed documents, accounts, or properties in their possession.

Earlier this year, the Finance Bill removed the qualifications which mandated that the the search proceedings can only be initiated only when the authority conducting the search has demonstrable reasons to believe that the person so searched is at default.

This amendment essentially allows infringement on a person’s fundamental rights without the requirement of a due process.

The Supreme Court’s judgment makes reference to previous rulings which have looked at the same or similar provisions of search and seizure, and reiterates the necessity for a reasonable basis or material for the collector to form an opinion that the documents in question are required. The term ‘reason to believe’ does not mean merely the subjective satisfaction on the part of the authorities but must be held in good faith. In light of clear affirmations made by this judgment, the removal of protective provisions from the search and seizure provisions may not stand the test of constitutionality.

These are but a few likely repercussions of this landmark judgment. Matters which could well become subjects of a judicial challenge or be impacted by this judgment range from state intrusions such as beef ban to private actions such as the changing of privacy policies in the Facebook-WhatsApp case.

What is clear is that this judgment adds a significant chapter to the rights discourse in India.



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