The Privacy Hearings: Some Notes on Supreme Court Practice (Guest post by Ujwala Uppaluri)

(This is the first post of a 3-part series by Ujwala Uppaluri on the ‘right to privacy’ hearings before the Supreme Court of India. Ujwala is a graduate of NUJS Kolkata and Harvard Law School. )

A bench of 9 judges heard arguments on the existence of a fundamental right to privacy on Wednesday and Thursday this week. This post explains the manner in which it came to be heard and attempts to demonstrate that an understanding of Supreme Court practice, and especially of the Chief Justice’s powers on the administrative side of the court, is necessary for a credible and complete evaluation of the Court’s record in civil liberties adjudication.

The reference to 9 judges originates in the cases contesting the constitutionality of Aadhaar, India’s programme for setting up the world’s largest biometric identity database. As they were being heard in the August of 2015, Mukul Rohtagi, who was the Attorney General at the time, defended the programme through an ultimately untenable but strategically clever reliance on stare decisis in the Supreme Court’s precedent on surveillance under Article 21.

Rohtagi’s argument, reprised by his successor in office KK Venugopal on Tuesday, was that there is no constitutional right to privacy in view of the ruling in MP Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh, which had been decided by 8 and 6 judges respectively. Both men have been categorical. The Union does not argue that the Aadhaar programme involves a permissible or lawful interference with the right to privacy. Rather, it takes the wholly undemocratic position that Indians have no right to privacy at all.

Casting the case as involving the correctness of decisions by larger benches could have had the effect of scuttling any real challenge to Aadhaar before it became fait accompli. It is reasonable to suppose that the Union was betting on the low likelihood of such a large bench being convened in time for it to halt Aadhaar.

Surprisingly, the gamble has not paid off. Although there is still a ways to go, the constitution of the bench is itself a victory for the Aadhaar petitioners.

In the reference order of the 11th of August, 2015, 3 judges (Justices Chelameswar and Bobde, along with Justice Nagappan, who has since retired) passed Rohtagi’s question along to a Constitutional Bench of 5 judges, leaving the Aadhaar litigation in suspended animation. On Tuesday this week – nearly two full years after that reference, 5 judges (Chief Justice Kehar, Chelameswar, Bobde, Nariman and Chandrachud) convened to consider these questions.

Years of delays between a referral and the convening of a bench of the appropriate strength to answer it are not unusual. For a recent example, in Abhiram Singh v. CD Commachen, another case with significant civil liberties implications and one of the three references that were heard by 7 judges last year, elections in 1990 were challenged. The case travelled to the Supreme Court from the Bombay High Court, and a referral to 7 judges was finally made in 2002. The court heard the matter last year, and gave judgment this January. Not unusually for cases stuck in this sort of judicially imposed limbo, the terms of the election petitions from which Abhriram Singh originated had become infructuous. In our case, efforts to irrevocably embed Aadhaar into the lives of Indian citizens have continued apace in the two years between referral and hearing.

By one account, there are in excess of 700 cases awaiting hearing by benches of 5 or more judges (see also here). For every one other than the Chief Justice and those he chooses to take into confidence, it is impossible to tell whether or when a Constitution Bench will be convened in a given case. In fact, there is essentially a black box in which chief justices make a vast number of decisions on the administrative side of the court. This covers what cases are listed, before which judges and when. The sheer volume of pending cases at the court offers successive chief justices a plausible – though not always convincing – screen for failing to constitute constitution benches. There is undoubtedly a significant opportunity cost directing adjudicatory resources away from ordinary business.

Additionally, the constant revolving door at the head of the court breeds institutional instability and uncertainty. Chief Justices change often. The present Chief Justice, for example, spends some 6 months in office before he retires and is succeeded by another judge who will bring different priorities and preferences to the office. A year or so later, things will change again.

The ever-changing priorities of the court coupled with its administrative side’s absolute immunity from journalistic and scholarly scrutiny seriously handicaps efforts at strategically litigating rights.

Even so, Tuesday’s Constitution Bench of 5 judges was only constituted after the Aadhaar petitioners’ persistent efforts to have the cases listed for hearing. These attempts included several unsuccessful oral mentionings before Chief Justice Kehar and his predecessor.

Mentioning is a practice at the Supreme Court by which lawyers seek a variety of directions from judges at the beginning of the court day. These include – as here – the immediate listing of a case for hearing. The vast majority of mentionings involve day-to-day administration such as permissions to file documents in ongoing cases. The prevalent practice, in which judges simply say yes or no to the request, is usually unproblematic. In our case, it has meant that the Supreme Court has been able to neglect such a fundamental question as whether Indian citizens have privacy under the Constitution for two years without written orders or any efforts to give reasons.

In the course of argument on Tuesday, the judges elected to determinatively settle the stare decisis question and referred it to 9 judges. That was followed up by uncharacteristically swift action. The required 4 judges (Justices Agarwal, Sapre, Nazeer and Kaul) were added to the bench on Tuesday evening and the reference was listed for hearing the very next day.