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Global Affairs Blog

The Right to Privacy in the Supreme Court of India

By: Amal Sethi, Assistant Editor and SJD Candidate and Anusha Ramesh, LLM’18

Two years ago, as America celebrated the 50th anniversary of Griswold v. Connecticut, the Indian Government fervidly endeavored to overturn the entire body of constitutional jurisprudence surrounding the Right to Privacy that had been developed over the course of the last four decades.

The Right to Privacy’s legacy in India commenced with the 1975 case of Gobind v. State of M.P. In this verdict, the Indian Supreme Court while acknowledging the absence of the term “privacy” in the Indian Constitution, relied on Justice Douglas’ famous ‘penumbral’ reasoning in Griswold and gave recognition to the Right to Privacy as being inherent in the totality of the Indian Constitutional structure. Since then, the Supreme Court has time and again expanded the contours of the right to privacy in a diverse range of judgments relating to phone tapping, narco-analysis, brain mapping, prisoner’s rights, and computer networks.

The latest in this line of cases arose in 2012, when Justice K. S. Puttaswamy, a retired ninety-one-year-old High Court Judge filed a legal challenge in the Supreme Court against the Government’s Biometric Identification Scheme called ‘Aadhaar’. The Aadhaar Scheme entailed the collection of personal information of residents including finger prints, iris scans and demographic information to generate a ‘Unique Identification Number.’ This Unique Identification Number would go on to become a prerequisite for withdrawal of governmental salary as well as availing of essential services such as cooking gas and grains from the public distribution system. Besides challenging the lack of any statutory authority backing the Aadhaar Scheme, the crux of Justice Puttaswamy’s contention rested on the premise that the Aadhaar Scheme violated the Right to Privacy.

After over three years, fifteen rounds of oral hearings and five hundred million enrollments under the Aadhaar Scheme, the Attorney General, contended that Indian citizens have no constitutional Right to Privacy and that every judgment that gave recognition to such a right over the past forty years needed to be corrected. In response to this contention raised by the Attorney General, on 24th August 2017, a nine-judge bench Indian Supreme Court unanimously decreed that the Right to Privacy was protected by the Indian Constitution.

It is pertinent to note that in this judgment, the Indian Supreme Court did not decide upon the constitutionality of the Aadhaar Scheme, and instead, examined the Right to Privacy in the abstract. In around 545 pages of dicta, the court placed the individual at the heart of the Right to Privacy and grounded privacy in other central guarantees such as life, liberty, equality, dignity, expression. It further recognized informational self-determination and decisional autonomy as important aspects of privacy. The court also pronounced that Right Privacy protected the sanctity of the home and relationships like marriage, sexual orientation and procreation. This decision signaled a monumental triumph for the Indian populace, especially in the wake of the right-wing BJP governments attempts to culturally reconfigure the Indian society

Fascinatingly, this case placed enormous reliance on International Law Instruments and jurisprudence of countries such as United Kingdom, United States, South Africa, Canada etc. It is also noteworthy in the way this decision grappled with the scholarly works of leading American academics like Michael Dorf, Catherine Mackinnon, Ronald Dworkin, Laurence Tribe and Penn Law’s Anita Allen.

By deciding a purely legal question in the abstract, this judgment, however, is only a beginning. It has paved the way for lawyers, judges, and academics to define the contours of the Right to Privacy in the most meaningful way possible. With an array of ripe issues ranging from banning beef eating and marital rape exception to issues of surveillance and data protection in the Aadhaar case before the Courts, it will be most interesting to witness how these cases will be argued and decided.

The Right to Privacy Case noticeably leaves a lot of inquiries unanswered. On 16th October 2017 Penn Law will host Senior Counsel Mr. Sajan Poovayya, one of the lawyers on the petitioner’s side in the Right to Privacy Case who will be joined by Prof. Anita Allen a foremost authority on privacy law and Prof. Shyam Balganesh the Co-Director of the Penn Center for Asian Law as they attempt to navigate through this landmark decision, the effects of which will bear consequences for roughly one-third of the people living in democratic societies.

Coincidentally, Penn Law has had a long-standing association with the other litigators behind this momentous decision in India with Senior Counsel Mr. Anand Grover, Senior Counsel Mr. Arvind Datar and Senior Counsel Shyam Divan all having recently spoken at Penn Law.



Amal Sethi is an SJD Candidate at Penn Law and serves as the Assistant Editor of the Global Affairs Blog.

Anusha Ramesh is an LLM Candidate at Penn Law. Prior to coming to Penn Law, Anusha assisted Mr. Gopal Subramanium, Sr. Counsel, Indian Supreme Court, in drafting and oral arguments in one of the accompanying petitions in the Aadhaar Case (Mathew Thomas v. Union of India).