Preserving Privacy After Puttaswamy II: An Invitation to Conceptual Thinking in the Constitutional Law Courtroom

Ed Note: As part of our New Scholarship Section, we have been inviting discussants to respond to specific articles. This piece is a part of a series of posts discussing the public law themed research articles featured in Volume 9 of the Indian Journal of Constitutional Law. You can access all the posts in this discussion here. In this piece, Ujwala Uppaluri responds to John Sebastian and Aparajito Sen’s paper titled ‘Unravelling the Role of Autonomy and Consent in Privacy’ summarized here.

In constitutional adjudication, just as always in the common law courtroom, they say that the facts are everything.

And yet, when the reference on the question of the existence of the right to privacy was made in Puttaswamy I, it was made in a total vacuum (See the order making the referral at K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735). The 9 judges deciding the case did not have before them any facts, which would have performed their natural role of constraining or grounding its holding. And as a result, uplifting as the general outcome in the case was, the standards of review which would apply and other critical questions of how the right would live and breathe in practice could not be settled.

For a right whose very existence and capacity for definition was assailed in Court by the State, this failure has effectively left the right to privacy vulnerable to being hollowed out in substance while continuing to exist in form. It is painfully apparent that neither the size of the bench, nor the unanimity of the holding in Puttaswamy I, raise any useful firewalls to maintaining – in substantive terms – a meaningful right to privacy.

The best example of this state of affairs is the data protection law slowly trudging its way to enactment. Having gone so far as to proffer (illogically) the enactment of an effective data protection law to the Puttaswamy I Court as a sufficient substitute to the Court’s (re)affirmation of a long standing fundamental right, the State and experts for it proceed to use successive drafts of this very instrument to innovate new and ever more invasive ways by which whittle down what rights-bearers are owed. (See here for the 1st, and here for the 2nd of the two recent drafts of the law. Savour, especially, their treatment of the threshold set for what amounts to actionable harm and the extent to which the power to surveil travels, before checks become permissible.)

These circumstances – of the abstract and porous guarantee of the right and state practice that is extraordinarily antagonistic to its meaningful preservation and exercise – have opened up a fertile space in which interventions from the academy will be critical to the battle to make Puttaswamy I meaningful. The constellation of questions that Puttaswamy I leaves to be untangled means that academic work now has a real and immediate opportunity to have impact in the courtroom, and on the minds of litigators and judges, who are usually a demographic so entrenched in working in a  piecemeal, parsimonious approach, and usually so resistant to engage in reasoning about values and philosophical foundations. Sebastian and Sen’s effort in “Unravelling the Role of Autonomy and Consent in Privacy” is work in this vein.

The remainder of this post discusses two ways in which this article succeeds in engaging with Puttaswamys I & II. It concludes that this work is both timely and generative for those of us working with informational privacy in both doctrinal constitutional law and more applied contexts.

The decision of the majority of the five judge Constitution Bench in Puttaswamy II (consisting of a 3 judges’ majority with another concurring, and a sole dissent) was our first indicator that the battle for a meaningful right to informational privacy had only begun. It is a demonstration of how this hollowing out of privacy from within, may occur in courtrooms. The case concerned some open and shut questions relating to the constitutionality of the Aadhaar programme, which the Court upheld in substance. The Aadhaar project, it was concluded, did not create a surveillance state. (See SCC ¶ 159 for a list of the Issues and ¶ 508 and 510-519 for the Findings.)

On the facts, the ‘evidence’ of safeguards presented to the court by the UIDAI was deemed satisfactory. This evidence, which the judgment records and relies on (SCC ¶ 185, 186, 508.6), was tendered in PowerPoint slide form, not by affidavit or under oath, and not permitted to be put to the rigorous cross examination expected in courts adjudicating questions of fact in the first instance. Notwithstanding that the thinking in relation to how evidence should be admitted and approached in constitutional adjudication is thin and uneven even in the Court’s own precedent, its approach in this case is difficult to square with such fundamental precepts as that of natural justice.

Sebastian and Sen’s first success comes on the other front: on the law. They attend with a happy degree of rigour to the foundations on which Puttaswamy II majority’s legal analysis proceeds, including to the question of the scope of the privacy right. Their work offers for tomorrow’s courtroom one approach to credibly and dispassionately dismantle the faulty foundation upon which the Puttaswamy II majority proceeds.

On the law, a range of issues – including the problem of judicial review of money bills – are (improperly) addressed. Among these, and critically to present purposes, the Majority opinion purports to “discuss in detail the scope and  ambit of [the] right to privacy” (SCC ¶ 108), and devotes much of that discussion to presenting a deeply disquieting construction of what the protection of ‘dignity’ (one of the three ideas – alongside autonomy and liberty – on which Puttaswamy I’s right of privacy rests) entails. (See a summarised conclusion at SCC ¶ 508.)

The protection of the dignity of the individual, it is said, is “only one side of the coin” (SCC ¶ 108). The other side is a “humanistic” (SCC ¶ 138) and “community approach” (SCC ¶ 145 and esp. 145.4 and 145.5). Given these two sides, there is a need for “balancing of the two facets of dignity of the same individual” (SCC ¶ 146). In effect, the Court sets up a frame for reasoning in which the right of the individual would always lose to whatever the State purports to be the community interest which is served by the action being complained of. It pits the individual against the collective, and an intangible and abstract interest of the sole rightsbearer against the more measurable interest of the many for whom the State speaks.

Sebastian & Sen make a full and fair attempt to rehabilitate Puttaswamy II. By travelling through their treatment of the holdings in the case, one is forced to conclude that even upon such a compassionate reading as Sebastian & Sen afford to it, the Puttaswamy II majority cannot be treated as good law on atleast two issues. The first of these relates to dignity. The second relates to the manner (and also arguably the factum) of Puttaswamy II’s application of the test of the reasonable expectation of privacy.

Sebastian & Sen show that, even upon straining, Puttaswamy II’s construction of dignity in our constitutional scheme is at odds with Puttaswamy I, as it is read and reinforced by subsequent unanimous benches of the Supreme Court in Common Cause (living wills), Navtej (decriminalising section 377 IPC) (see section 2.3 of the article). They make this point by teasing out some sequiturs of the conceptual architecture on which Puttaswamy I sits, qualifying its construction of dignity as an “autonomy-rich dignity” and presenting the Puttaswamy II majority’s recasting of it into a cannibalistic and rights-defeating dignity in contrast. In their more gentle framing, Puttaswamy II relies on an “uncertain counter-formulation of dignity” (p.14), where Puttaswamy I and its proper progeny take the line that “dignity is a liberty-affirming concept rather than a liberty-restricting one” (p.7).

As to the reasonable expectations of privacy test in and after Puttaswamy II, their work shows just how many knots one might need to tie the argument up in before reaching even the equivocal conclusion that  “…it is best to broadly  read some of the ambiguities in Sikri J.’s opinion in consonance with …. Puttaswamy I …while discarding those parts  which are contrary to the nine-judge decision” (Section 5.3 at p. 29). Even aside from the fact that it cannot be salvaged in logic after Nariman, J.’s decisive dismantling of it in Puttaswamy I, it is worth noting that the standard is so riven by circularity and incoherence that it is losing currency even in its parent jurisdiction (See footnote 7 of this article, indicatively).

Sebastian and Sen’s second success is in attempting to show how a lack of clarity and rigour on the abstract might have the result of subverting the applied, whether it is in policy-making and legislation, or in the courtroom. Their main preoccupation is with the idea of consent, taking it (correctly) to be the only available legal conept by which to put into effect the constitutional commitment to  preserving personal autonomy.

Working chiefly from the lens of informational privacy concerns, they show how a range of questions going to the root of Part III rights’ character bear immediately on the business of putting consent to work as the fulcrum on which the proposed data protection law would operate. They emphasize that consent in  the constitutional conception is specific and the duty to obtain and respect it is continuous. This casting of consent is a foundational element of all data protection talk in legislative and regulatory contexts, so the value of a constitutional mooring cannot be overstated.

In one particularly tidy instance, they show how squaring the position on the waiver of fundamental rights with the shaky precedent on natural rights before Puttaswamy I (section 3 at p.14) would bear on the limits of the information privacy right.

As a final example of the bridging work between the doctrinal and the work-a-day that Sebastian & Sen undertake, a brief and satisfying point that they make is in showing that the deeming language in Section 59 of the Aadhaar Act has the rights-effacing effect of creating the illogical legal fiction of retrospective consent (p.35).

Sebastian & Sen’s approaches and conclusions are not all watertight. Their choice not to attend to the doctrine of unconstitutional conditions (while dealing so much with waiver) is debatable, both because it was argued at length before the Puttaswamy II Court, and because it connects so intimately to their own effort of priming the constitutional law to yield a rights-regarding conception of consent that legislators and regulators can deploy. And their ambitious effort to offer a counter-formulation to the conventional approach to testing for an actionable injury to the privacy right is not wholly convincing. Among other things, I worry that it might conflate questions about whether the right applies and covers a given case (a prior stage in the enquiry) with questions relating to whether the State’s action in interfering with the right (a latter and separate stage), should the case be covered, is within constitutionally permitted grounds.

But, by their own admission, Sebastian and Sen intend by this article only to begin the work of making consent-based privacy claims meaningfully protective of our rights. And in that, they succeed. This article is a useful primer of the web of constitutional law doctrines that will determine the force of the informational privacy right. It shows convincingly that doctrinal clarity is sine qua non to legislating consent and, later, to defending rights-preserving readings of that idea in the courtroom. The larger project of working out the particulars is an exercise in which more engagement from many more voices is necessary. Sebastian & Sen’s work is a timely invitation to do so.

 

Ujwala Uppaluri is an advocate at the Supreme Court.

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