(This is the second post by Ujwala Uppaluri in a series on the ‘right to privacy’ hearings in the Supreme Court of India. The first post can be accessed here.)

On Tuesday and Wednesday last week, Petitioners in the Aadhaar cases presented arguments asserting the existence of a fundamental right to privacy before 9 judges of the Supreme Court.

Day 1 saw argument from Gopal Subramaniam, Shyam Divan and Arvind Datar. Soli Sorabjee made very brief submissions soon after Subramaniam.

Day 2 saw Datar wrap up, and Anand Grover, Sajjan Poovayya and Meenakshi Arora present arguments. Perhaps in awareness of the momentousness of the case, counsel have taken the unusual step of making most of their Written Submissions publically available. (See here for Subramaniam; here and here for Divan; here for Datar; here for Grover; here for Poovayya and here for Arora). Servicable summaries of the argument are available here.

Early on Day 1, Sorabjee stood up to say correctly by analogy to the right to freedom of speech and expression under Article 19(1)(a) that the non-mention of a right did not imply its exclusion from the Constitution. Between the remaining six of them, Petitioners’ counsel covered the full gamut of the possible constitutional openings for a right to privacy. The impetus to the recognition of a privacy right was deontological for some (as in Subramaniam’s opening appeal to dignity and liberty as freestanding values that the Constitution defends and from which privacy is derived on Day 1) and consequentialist for others (as in Grover’s demonstration of the material harms, both physical and psychic, flowing from a failure to recognize privacy and its concomitant, personal (including gender) identity).

Arguments concerning the nature of the right were similarly varied. They took one of the following lines:

1. Privacy is a supra-constitutional right. All other rights expressly guaranteed by the Constitution are made effective by the (pre)existence of a privacy right.
2. Privacy is a penumbral right. It derives either from Article 21, or from the golden triangle of Articles 14, 19, 21 and also, arguably, other rights including Articles 25, 29 and 30.
3. Privacy is a travelling, contextual right. For example, if it hampers the ability to speak, it will manifest as a violation of Article 19(1)(a).

All the petitioners endorsed RC Cooper’s repudiation of AK Gopalan’s ratio that fundamental rights operate in mutually excluding silos.

A categorical dismissal of Petitioners’ claims is an extremely remote final outcome. After all, the Court is presented with a smorgasbord of compelling arguments for the existence of the right. The real fight will be in how the court elects to fashion the privacy right. If the Union can do any damage to the Petitioners’ case, it will be to the form of the right, rather than to the fact of its existence.

But we need not go that far. The court, acting with the strongest of intentions to institute a privacy right, could nonetheless propound a right that hobbles from the start if it does not steer clear of what I call pathologies of Indian rights argumentation. The remainder of this post introduces three recurring and related tropes in reasoning through civil liberties cases through illustrations of their use in the privacy hearings thus far, and explains their capacity for impoverishing rights.

1. Eliding between definition and justification

In the course of testing the tenability of Gopal Subramaniam’s formulation of privacy as choice on Day 1, Justice Chandrachud offered us an illustration of the limits of that formulation: while choices concerning marriage may certainly be covered as private, the choice as to schooling one’s child, he thought, would not.

Ad nauseam throughout the hearing, both bar and bench prefaced their comments concerning the putative scope of the right with the statement that privacy is not absolute.

Both of these are examples of ellisions between definition and justification. The former is a threshold question that attempts to say what the right is and how far it extends (i.e., its scope). (See here for a treatment of this distinction in the context of the ECtHR’s jurisprudence. Heading 2.1 is immediately useful.)

Once a definition is arrived at, the latter question arises. It is the question of whether state is saved on judicial scrutiny in a given case of interference with the right in question.

For a simple example from Article 19(1)(a), one of several sites in which to locate a privacy right, consider a rule that would criminalize clapping. The first limb of the enquiry would be whether clapping is ‘speech and expression’ for 19(1)(a) purposes. Since it is, a state law curtailing the right to clap interferes with Article 19(1)(a). That brings us to the second limb: does the law meet the reasonablness standard and have a purpose recognized by Article 19(2)? If yes, the state’s interference with the right is constitutional.

In Justice Chandrachud’s example, at the threshold, the latter example of choosing whether to school one’s child is covered under any privacy right that would define privacy as choice. What is material is that since there is a constitutionally recognized countervailing interest (arguably, the interests of the minor) to exercising that choice, state interference with such a choice would likely be constitutional.

Evidently, definition and justification are separate questions. Settling questions of scope prior to and independently of questions of justification is indispensable to ensuring the vigour of the right in question. The distinction is material, and could serve to clarify the work of the court. In the limited reference before it – of whether a right to privacy exists – they are answering the the definition question and those that precede it. They are not answering those that follow.

Our analysis thus far should reveal that Justice Chandrachud’s question was simply the wrong one to ask, and forcing the constant restatment of the uncontested fact that privacy is regulable is a distraction. Ellisions between definition and justification are not a benign trope of rights argumentation that stop at introducing occasional irrelevant asides into the work of asserting and assessing claims of rights violations. They have real and damaging consequences.

By conflating the definition question and the applicable standards of review, Justice Chandrachud and the privacy-is-absolute trope both put the cart before the horse. They invite the pathology of reasoning backwards from the applicability of the restriction to the existence and contents of the right that is already endemic to Article 19 cases. They place the rightsbearer in a constant defensive posture. Aside from contending with the presumption of constitutionality, rightsbearers should be able to assert rights affirmatively before evaluating the restriction takes centrestage.

2. Attempting a priori definition

Throughout Petitioners’ arguments, the court displayed a preoccupation with setting down the boundaries of a possible right to privacy. This is not a wholly unreasonable concern, but the easy sliding from arguments as to the existence of the right and as to its boundaries and back is concerning.

In response, Petitioners correctly conceded that privacy is an “amorphous concept”, even as they presented open catalogues definitions of the various facets of the right. Their constant refrain was that the right’s applicability would have to be judicially considered on a case-by-case basis.

The impossibility of compendious definitions should not lead us to conclude that the right does not exist or that it is not capable of defence under our constitutional framework. Conceptually, privacy suffers fuzzy boundaries, but not a vacuous or terminally vague core. Working formulations for courts, including this excellent one by Daniel Solove, abound.

What is more, a priori boundary setting for constitutional rights is neither possible nor desirable.

For one thing, privacy is not the first right under our Constitution to suffer fuzzy boundaries or to require judicial assistance in working its language. For example, the contestation of the term ‘religion’ in Article 25 in SP Mittal v. Union of India or the Shirur Mutt case before it does not call the existence of the right into question in any way.

For another, rights language does best when it is general, rather than overly specific. Petitioners frequently cited IR Coelho for its “constitution-as-living-document” reasoning to offer the most obvious reason why constitutional language that is capable of some plasticity is preferable: temporal change and the impossibility of perfect foresight.

3. Allowing expansive restrictions

Towards the end of Day 1, Justice Nariman raised an important question: assuming that the right to privacy is either a supra-constitutional right or that it is an itinerant right under Part III, how is the court to review the constitutionality of state interference with it? In the only other case Petitioners presented – of privacy as an Article 21 right – evidently, Article 21 standards would apply.

Justice Nariman’s logic in asking the question is recorded in Shreya Singhal’s case to which another judge on this bench, Justice Chelameswar was also party. There, Justice Nariman wrote that Article 19(1)(a)’s guarantee is strengthened rather than emaciated by the existence of Article 19(2). He is correct. The ex ante prescription of permissible grounds for restriction in Article 19(2) forecloses recourse by the State to all other grounds. For example, freedom of expression cannot be curtailed in the public interest because that is not a listed pigeonhole in 19(2).

A limited, closed menu of restrictions is undoubtedly an important tool in the defense of civil liberties. But Justice Nariman’s logic is undercut by the dangerous plasticity of some of the grounds included in Article 19(2). ‘Decency’ and ‘morality’ are, for example, hopelessly subjective categories. The names we give the categories on the menu of restrictions for privacy will be just as important as the factum of the menu’s existence.

Petitioners offered two answers to Justice Nariman’s query. First, all the standards of review applicable to all the enumerated rights that are implicated by the impugned restriction would have to be met, in view of RC Cooper. That approach appears technically correct. Perhaps because that may prove unwieldy in the working if too many different standards apply at once, it did not seem to have satisfied the court.

Much more loosely, throughout the argument and particularly on Day 2 when Grover and Poovayya presented their respective cases, Petitioners slid into references, mostly implicit, to the balancing review in the three-part test in international human rights law as a useful heuristic. It requires the restriction be:

1. Enumerated in a valid law,
2. Geared towards a ‘legitimate aim’, and
3. Strictly necessary to the achievement of that aim

Without distinction, Petitioners’ referred both to ‘legitimate aims’ and ‘compelling state interests’. In their own illustrations, they seemed happy with review proceeding on either ground. There was no acknowledgement that the two types of justifications vary considerably in strength. In their failure to distinguish between the two, Petitioners’ may have given away too much ground. They foreclose the possibility of discussing variable review, so that some types of state interferences, such as secret surveillance, would require the existence of a compelling – rather than simply legitimate – interest to be asserted.