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Professor Gautam Bhatia writes about the recent Indian Supreme Court decision on the right to privacy. Professor Bhatia teaches visiting courses at the National University of Juridical Sciences and runs the Indian Constitutional Law and Philosophy Blog.
Towards the end of August, a nine-judge bench of the Indian Supreme Court unanimously held that the right to privacy was a fundamental right under the Indian Constitution. The case arose out of a constitutional challenge to the Indian government’s national biometric identification scheme (commonly known as “Aadhaar”). During the course of arguments, the Attorney-General for India argued that there were two previous decisions of the Court – handed down by benches of eight and six judges – that had held that privacy was not a guaranteed right under the Constitution. Consequently, a nine-judge bench was established to reconsider and resolve the legal position, and overrule these prior cases, if necessary.
While the verdict of the Court was unanimous, there were six separate opinions, which dealt with a number of issues, ranging from data protection to State surveillance. The implications of the judgment are – and will continue to be debated in the coming weeks and months, not least in the context of the Aadhaar scheme. And one important area where the Court’s judgment is bound to have an effect is on issues involving personal, intimate choices.
In defining the right to privacy, the separate opinions largely agreed that there were three separate facets: bodily and mental privacy; informational self-determination; and decisional autonomy. In elaborating the meaning of decisional autonomy, the Court focused on the idea of “choice”. Justice Nariman, for instance, noted that the “privacy of choice… protects an individual’s autonomy over fundamental personal choices.” Other judges took specific examples, such as choice of association in personal or political life, the choice to terminate one’s own life, the choice to abort, and so on. Perhaps the most important statement of the principle, however, came for the plurality opinion, which had the support of four judges out of nine. After noting that “decisional autonomy comprehends intimate personal choices”, the plurality went on to observe that that “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular.”
These two aspects – the grounding of the right to intimate decision and fundamental personal choice within a broader fundamental right to privacy, and then insulating it from the proscriptions of majoritarian sentiment, whether legal or moral – are equally important. The first ensures that issues of sexual orientation, sexual identity, euthanasia, abortion, and so on, are all constitutionally protected. The second guarantees that if the State wants to restrict these rights, it cannot invoke the vague and amorphous concept of “public morals” (which it has often done in the past) to justify restrictions.
In fact, the plurality opinion took the rare and unusual step of castigating one of its own prior decisions in express terms, despite the fact that its correctness was not at issue, and had not been argued by the parties. This decision was Koushal vs Naz Foundation (2013), where a two-judge bench of the Supreme Court had overturned a judgment of the Delhi High Court, and recriminalized homosexuality. In Koushal, the Supreme Court had justified its decision by noting that homosexuals were a “minuscule minority”, a statement that was singled out by the plurality in the privacy judgment as being particularly problematic. The plurality also noted that there could be no doubt that the rights of sexual minorities were central to any meaningful articulation of the right to privacy (in this, the plurality was joined by two other judges).
The Supreme Court’s right to privacy judgment, therefore, has laid the ground for a swift overruling of Koushal (this case is presently pending before a five-judge bench of the Supreme Court in a special proceeding known as the “curative jurisdiction”), and the foundations for a jurisprudence that will ensure dignity and autonomy to sexual minorities.
For other issues however, the position is not so straightforward. For example, after a two-judge bench of the Supreme Court legalized passive euthanasia (with some qualifications), the issue was referred for resolution to a five-judge bench, where it is still pending. While one of the opinions in the privacy case specifically mentions the right to terminate one’s life as an example of decisional autonomy, at the same time, the plurality also holds that under the Constitution, one cannot waive one’s fundamental rights (one of which is the right to life). Another issue is that of abortion: while abortion is not prohibited in India, it is regulated under laws that set a specific time limit after which it is no longer allowed (twenty-four weeks). The rationale for this twenty-four week limit is not entirely clear, but it appears to be based on a combination of concern for foetal life and the health of the mother. It is now an open question whether, in view of the right to decisional autonomy as a facet of privacy, the twenty-four week limit will be subject to constitutional challenge.
Because of the numerous counterveiling factors involved, the Supreme Court’s right to privacy judgment will not automatically transform the state of the law on issues such as abortion, euthanasia (and other issues that implicate personal choices, such as the regulation and ban on cattle slaughter, which is also presently pending in the Supreme Court). However, its importance lies in articulating the contours of the right to decisional autonomy, and locating it firmly within the Constitution. This ensures that the burden of justifying restrictions lies upon the State, and in that way, the constitutional relationship between the State and the individual is recalibrated in favour of the latter.