The broken promises of Puttaswamy

Five years back, a nine judge bench of the Supreme Court of India delivered an emphatic endorsement of the constitutional right to privacy. In the course of a 547 page judgment, the bench affirmed the fundamental nature of the right to privacy, reading it into the values of dignity and liberty. In September 2017, I wrote that this judgment is, without doubt, a landmark decision and joins the most important decisions on fundamental rights jurisprudence in India. Five years down the line, it may be a good time to consider the short term impact of this judgment on both law, policy and practice in India, as well as the direction of rights jurisprudence in India. 

At various points in the history of the Supreme Court, certain discernible trends can be identified, which seem to influence a large number of decisions. In the first two decades after independence, the court’s interpretation was mostly textual, sticking to the Constitution and relying heavily on the Constituent Assembly Debates. In the next phase, the courts were much more willing to move beyond a textual reading, and a more structural and ethical reading of the Constitution was encouraged, and a preservation of  fundamental rights in particular became the norm. In the next phase, there was a drop in judicial discipline as the courts began to sit in smaller benches of two, with decisions becoming much more result-oriented. The Puttaswamy judgments is a part of what may be considered a fourth phase of the apex court’s jurisprudence, marked by a new kind of  judicial incongruence, sometimes even involving the same judges. 

Puttaswamy had, and continues to have, the potential to introduce a new era of constitutionalism in India that, in words of Atrey and Bhatia, “places the individual at the centre of the constitutional scheme.” The promises of Puttaswamy lay in the following factors. First, the unanimous and emphatic nature of its recognition of a fundamental right to privacy, the primacy of informed consent and centrality of the individual in the constitutional scheme that it sketches was unprecedented. Second, its willingness to right two the most egregious wrongs of the court — ADM Jabalpur v. Shivkant Shukla, which denied the right to life and liberty during emergencies, and Suresh Kumar Koushal v Naz Foundation, signalled an expression of humility in departing from the court’s past mistakes, which may usher in a new era of self-reflection and recognition of the court’s responsibilities as the foremost guardian of fundamental rights and constitutionalism. Finally, the nature of rigorous reasoning in the judgement where the sources for fundamental rights, its scope and the limiting tests were articulated indicated that it had the potential to lead to a constitutional scheme where clearly defined tests could determine the extent and scope of protections. 

Sadly, over the last five years, this has not happened. Aside from its impact from constitutionalism in India, it was also expected that Puttaswamy’s wide guidance would lead to surveillance reform, greater accountability from the state’s welfare agenda, and better regulation of private collectors of data. The impact of the Puttaswamy judgment on privacy issues in India, while not inconsiderable, has not had the far reaching impact yet. that was expected. 

In 2018, the Supreme Court decriminalised adultery in Joseph Shine vs. Union of India, on the grounds that it interfered with the right of a woman over her autonomy in the context of a marriage. The reliance on feminist critique of privacy as understood in Puttaswamy was critical in this case and teh court held that privacy cannot be used to further systemic inequities of patriarchy and subjugation of women. In another matter, the court struck down rules prohibiting the entry of women between the ageas 10 and 50 into the Sabrimala Temple in Kerala, on the grounds that religious notions of ‘purity’ were injurious to values of dignity, as recognised as a facet of the right to life. The Bombay High Court read down interception and wiretapping orders under Section 5 (2) of the Indian Telegraph Act as they did not satisfy the tests of legitimacy and proportionality under Puttaswamy. Perhaps the most significant judicial impact of Puttaswamy has been in the form of the judgment arising from the review petition, challenging Section 377 of the Indian Penal Code (which criminalized ‘carnal intercourse against the order of nature’) as vague and in violation of the the rights to privacy, equality and freedom of expression. The court unanimously read down Section 377 in what was a significant victory for LGBTQ rights in India. 

On the other hand, perhaps the biggest disappointment was the court’s judgment in the Aadhaar case. The Aadhaar project and legislation (barring a few provisions) was upheld by a majority of the 5 member bench. The majority opinion considered the  tests highlighted in the Puttaswamy judgment such as the ‘just, fair and reasonable’ test and the proportionality standard. The Indian Supreme Court spent some time in comparing the Canadian and German court’s version of the proportionality standard, noting points of difference in how the restricting act will be evaluated. While the Canadian courts require that the state must limit the right as minimally as possible, the German courts clearly state there must be no less restrictive but equally effective alternative possible. The court favors the German interpretation, but concludes that “there is no alternative measure with lesser degree of limitation which can achieve the same purpose.” This conclusion was drawn without any analysis in the judgment either of the alternative technological solutions or the efficacy of the existing system to achieve the ‘purposes’. Further, despite the rejection of the ‘reasonable expectation of privacy’ test in at least of the opinions in Puttaswamy, it was applied as part of the proportionality test in the Aadhaar judgment. Since then, even the restrictions imposed on uses of the Aadhaar project have been largely reversed through subsequent regulations, without any real judicial scrutiny. 

What the past five years’ experience has also highlighted to any student of the jurisprudence of the Indian Supreme Court is a trend of judicial convenience. As emphatic as the pronouncements in Puttaswamy may have been, it is worth noting that this was a referral matter where the court had to consider a question of law, without applying it to any facts and circumstances. As the Aadhaar matter demonstrates, when the principles established in Puttaswamy are applied to difficult questions of fact, the court’s position may not always be quite as emphatic. 

Another matter that is worth looking into for our discussion is Shafin Jahan v. Ashokan K.M. These hearings coincided with Puttaswamy where the court looking into a prolonged matter in which a lower court had annulled a marriage between an adult woman, who had converted to Islam, and an adult Muslim man, and directed the woman to be taken into the custody of her parents. This case, which dealt with a blatant case of interference with a woman’s autonomy, should have seen an immediate dismissal of the lower court’s judgement. Yet, the court, while simultaneously waxing eloquent about decisional autonomy in the privacy case dithered and delayed the matter, ordering a probe by the National Intelligence Agency to determine the woman’s state of mind. Even though the court finally did set aside the annulment, the fact that it took several hearings, and did not provide any relief for so long, shows its hesitance to rule in cases where the matter may be controversial. In the privacy case, the coverage in the media and the widespread public opinion were in favour of a finding for privacy. Yet, when they had to apply the same standards for matters that could be more controversial, they were much more evasive. 

The dithering over and recent withdrawal of over the data protection bill is another example of a complete disregard of the positive obligations articulated by Puttaswamy. It must be remembered that the Puttaswamy judgment held that privacy is both a negative and a positive right, meaning that not only does it restrain the state from committing an intrusion upon the life and personal liberty of a citizen, it also imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. The Puttaswamy judgment notes the process to create a data protection law based on the recommendations of the Committee of Experts led by Justice Srikrishna.  It is clear that the data protection law emerges directly from this positive duty, to protect the privacy of individuals both from the state and private parties. It is important to explore the implications of the positive nature of the fundamental right to privacy. 

It is customary to think of substantive rules which govern the legislature’s power to enact rules as limited to restraint on the State from acting on spheres, most notably the sphere of individual rights, as captured in Part III of the Indian Constitution. However, substantive rules can also require a positive duty of the State to protect rights or facilitate entitlements. It is often assumed that the positive dimension of rights relate primarily to socio-economic or social rights such as the rights to benefits and entitlements such as education, health, housing, or water. However, as Klatt has argued, “[all] classical liberal rights of the first generation of rights may have a positive dimension, while social and socioeconomic rights also protect a status negativus.”

The positive content of privacy imposes an obligation on the state to take all necessary measures to protect the privacy of the individual. The judgment also acknowledges that the discharge of this positive duty through the framing and implementation of a data protection law would involve legitimate aims of the state such as “protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits.” Klatt and Meister have argued that much like the proportionality rules governs a negative right, they have a similar relevance in governing the positive obligations of the state. Unlike negative rights which are by definition conjunctive, positive rights are disjunctive or alternative in nature. This means that any measure interfering with a negative right does have a definite opposite—that is the absence of the same measure, but the alternative nature of positive rights means that the unlawful inaction of the state has no definite opposite, but likely multiple ones. If the state is obligated protect your privacy, it may do so by employing any number of alternative or comparable means available to it. 

The series of data protection drafts set a poor example by equating the protection of privacy and personal data, which derives its orgin from the positive right to privacy, with policy objectices influenced by political economy considerations such as ‘a free and fair digital economy’ (2018 draft), ‘interest and security of the state’, and the need for ‘norms for social media intermediaries’ (2021 draft). While it is entirely within the remit of the legislature and the executive to pursue policy objectives through laws and policies, it is unusual to see such considerations dominating the positive rights obligations of the state in legislation intended to directly discharge them.

It is yet early days to measure the true impact of Puttaswamy on the rights discourse and the everyday practice of fundamental rights in India. Despite the clarity that Puttaswamy provides on reasonable restrictions (to privacy), surveillance reform remains a pipe dream, the positive obligations of the state with respect to data protection has moved at a snail’s pace and we see little application of the privacy principles established in the state’s many initiatives as part of its welfare agenda.