Stray thoughts on the Privacy hearings

The privacy hearings before a 9-judge bench (excellently covered by Ujwala Uppaluri on this blog) have excited much attention. Some thoughts on these hearings below:

1. On the adjudicative form: This is how adjudication, especially in a constitutional court, should normally function–a reasonably large bench that takes it time to hear multiple voices on the most fundamental issues under our Constitution. Unfortunately, the Court’s lack of discipline in the astonishing expansion its SLP jurisprudence means that the privacy hearings remain an aberration. What we normally get is rough-and-ready, doctrinally indifferent, under-reasoned, panchayati jurisprudence on matters of little constitutional significance from overworked judges, mostly interested in ‘disposing’ a matter that should not have reached the Supreme Court to begin with.
2. On the ‘location’ of privacy: The ‘penumbral’ right approach (drawn from some mysterious combination of Articles 14, 19 and 21) is dangerous territory. I think this collapsing of the distinctiveness and boundaries of different rights has been bad for human rights protection, and we fail to ask clear questions about the proper scope and limitations of each right. The fuzziness about rights taken as a whole is worse than any impugned law having to satisfy the demands of each right individually. I hope the bench locates ‘privacy’ firmly as a constituent of the right to ‘liberty’ under Article 21. Of course the right to privacy is essential to the effective exercise of the rights guaranteed by articles 19 and 25. So are the rights to education, health and shelter. Just because right x may not be effectively exercised without right y does not mean that y necessarily derives from x.
3. On justification: Even when a breach of a right is justified, the right still exists. Uppaluri correctly calls for the separation of the scope issue from the justification issue. The judgment will hopefully provide some clarity over the question of justification of rights in Indian constitutional law more generally. The issue of justification is muddled generally, and not just in respect of privacy. The court will do well to recognise that some rights might require a higher standard of judicial scrutiny than others. Readers interested in exploring the question of justification (the various elements of justification, the variations in standards of review, how these variations might relate to different rights etc) might find this article helpful.
4. On the status of the right to privacy as a ‘common law’ right: This is perhaps the most outrageous aspect of this litigation–a democratic government arguing that its citizens do not have a fundamental right to privacy! Not that its breach may sometimes be justified, or that the scope of the right might be smaller, no–rather, a wholesale argument that there is no constitutionally protected right to privacy. Its counsel has disingenuously suggested that  privacy is protected under the ‘common law’ anyway. Anyone vaguely familiar with the Indian legal system knows that a ‘mere’ common law right in India is as good as no right at all. Everyone knows that common law rights are normally enforced by ordinary courts, whose ability to enforce any right meaningfully is even more limited that the constitutional courts’. Citing jurisprudence from the UK, where common law rights are a genuine constraint on government, is unhelpful. At any rate, there is no reason why something cannot be a common law right as well as a fundamental right. The right to life does not rule out a common law tort of assault and unlawful killing. The fundamental right to freedom of movement can exist alongside the tort against confinement. The right to property was not relegated because the common law right against trespass already existed. We do need to reform our ordinary courts so they make the common law rights realisable. That is not a reason, however, to decide that simply because something is a common law right precludes its acceptance as a fundamental right.
5. On horizontal application: I find this treacherous territory. I think some fundamental rights (like the right to life and the right against discrimination) should have general horizontal application. But others should not. My freedom of religion, for example, is primarily a claim against the state–another private person has some duties in relation to my right (for example, to refrain from stopping my conversion). But she has no general duties to see to it that all facets of my freedom of religion are realised. For example, as a private person, I have no constitutional duties to refrain from cooking meat because it offends the religious sensibilities of my neighbour. I think that several aspects of the right to privacy should indeed be horizontal, But a general horizontal application of privacy could have significant implications for freedom of the press. The Court should tread carefully on this matter. In the least, any general extension of privacy should be restricted to large corporations, and include a clear and specific defence for public interest disclosures by media houses.
6. Those who are able to access it might greatly benefit from Mariyam Kamil’s excellent MPhil thesis on the history and structure of the right to privacy in India. [Full Disclosure: I was one of her two examiners for this thesis].
7. Finally, readers might also enjoy listening to this philosophical podcast on why we should care about privacy.