Introduction

September 2018 may go down in Indian law as one of the most liberal months in the history of the country’s Supreme Court. From decriminalising ‘unnatural’ sex and adultery to declaring centuries-old religious practices to be unlawful discrimination, the judgments from India’s outgoing Chief Justice Dipak Misra and his fellow Justices have been hailed as both landmark and historic. However, the September rulings were arguably predestined by another of the Supreme Court’s decisions handed down more than a year ago, in Puttaswamy and Anr v Union of India and Ors (2017) (“Puttaswamy (No. 1)”), which set in train the irreversible sweeping of some of India’s most entrenched legal cobwebs. Examining the judgment in Navtej Singh Johar and Ors v Union of India and Ors (2018), which protected the sexual agency of LGBTQI individuals for the first time, and its successor judgments, this post examines the Indian conceptualisation of the right to privacy and how that may hold lessons for construing privacy and private information in the UK.

Navtej Singh Johar: the application of privacy

But first, the facts: section 377 of the Indian Penal Code 1860 (“IPC”) criminalised ‘carnal intercourse against the order of nature’, carrying in its vast sweep any sexual acts which were not procreative in their outcome (Navtej at [75] in the opinions of Misra CJ and Khanwilkar J). Though a provision which resulted in comparatively few successful prosecutions, the law inspired fear of persecution in any individual who engaged in non-procreative sex, hence largely targeting the LGBTQI community. Ultimately, after lengthy philosophical, historical, moral and doctrinal expositions, the Court unanimously castigated the oppression of the LGBTQI community, declared section 377 violative of the Indian Constitution and extended constitutional protection to sexual orientation.

Central to the ratio in Navtej was the Court’s understanding and application of the right to privacy. The word privacy features 243 times in the four opinions, with sexual agency and sexual orientation being understood as external reflections of an inherence which is protected and nurtured within the private space of the individual. More than that, the Court understood privacy as intrinsically linked to individual identity and the capacity to shape one’s identity through autonomous choice and free expression. Section 377 in criminalising sexual agency thus silenced identity and in so doing, usurped privacy. As Misra CJ poignantly observed, “Identity is equivalent to divinity” (Navtej, [2]). The Court’s determined focus on the right to privacy owes much to its earlier decision in Puttaswamy (No. 1), which marked a watershed moment in human rights jurisprudence in India.

Puttaswamy: the conceptualisation of privacy

In determining a challenge to the Indian Government’s nationwide rollout of a biometric identity card or ‘Aadhaar’ as violating individual privacy, the Supreme Court was faced with a series of its own cases which disagreed with each other as to whether or not privacy was a constitutionally protected right. The most potent of these cases was MP Sharma and Ors v Satish Chandra (1954) AIR 300 in which eight Supreme Court Justices held that no right to privacy existed in the Indian Constitution. In Puttaswamy (No. 1), nine Supreme Court Justices unanimously overturned MP Sharma and elevated privacy to the status of a constitutionally protected right. Although the Court expressed a multitude of ways in which to conceptualise privacy, I take the plurality definition authored by Chandrachud J on behalf of himself, Khehar CJ, Agrawal and Nazeer JJ as authoritative, given its frequent citation in Navtej as well as the other privacy-inspired September decisions of the Supreme Court.

Thus at the heart of Puttaswamy (No. 1) is a conceptualisation of privacy which is worth setting out in full:

“Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private.” (Puttaswamy (No. 1), [168] per Chandrachud J).

The above trinity of autonomy, identity and agency forms not only the core of the Court’s understanding of privacy as a right, but also the DNA which runs through all constitutionally protected rights. A line can thus be drawn from the conceptualisation of privacy in Puttaswamy (No. 1) to the decriminalisation of non-procreative sex in Navtej: a LGBTQI individual cannot determine how to exercise the freedom of choosing a sexual partner because the choice itself is criminal; in denying sexual agency, section 377 negated autonomy and thus obliterated identity. Thus, the question for the Court in Navtej was not whether section 377 was unconstitutional for criminalising consensual conduct between adults, but whether, in intruding upon individual privacy, it effectively amounted to a denial of personhood.

The same trinity of autonomy, identity and agency was used on 27 September 2018 to strike down another aspect of the IPC – section 497, which criminalised adultery by a man with a married woman, unless the woman’s husband consented to or connived in the adultery (Shine v Union of India (2018). Conversely, a measure which does not deny personhood may well pass constitutional muster. In Puttaswamy (No. 2) v Union of India (2018), a majority of the Court upheld the overall constitutionality of the Aadhaar scheme (while striking down certain discrete provisions therein) as its central aim of better targeted delivery of State welfare ensures dignity and thus personhood by enabling economic autonomy and agency.

The contrast with Europe and the UK

Private and family life, protected under Article 8 of the European Convention on Human Rights (“ECHR”), has been parameterised by the European Court of Human Rights (“ECtHR”) along largely circumstantial lines. In Axel Springer AG v Germany (Application no. 39954/08) for example, the Grand Chamber said at [83]: “The concept of “private life” is a broad term not susceptible to exhaustive definition, which covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of a person’s identity, such as gender identification and sexual orientation, name or elements relating to a person’s right to their image”, thus non-exhaustively listing factors which may be brought within the ambit of privacy, as well as circumstances which may in turn intrude on someone’s private life.

Article 8 protects a spectrum of private life with an “inner circle” at one end which is axiomatically private (see Niemietz v Germany (Application no. 13710/88), [29]) and a reasonable expectation of privacy at the other end, which is both highly fact-sensitive and objective (see Halford v UK (Application no. 20605/92), [45]). Indeed, within UK privacy jurisprudence, the courts often extend the reasonable expectation of privacy into something approaching a bright line rule with which to ascertain the prima facie engagement of Article 8 (see Campbell v MGN Ltd. [2004] UKHL 22). This spectrum however, unlike the conceptualisation of privacy in Puttaswamy (No. 1), is not grounded on the protection of an inherence, but on certain factors which, when viewed objectively and reasonably, warrant legal protection within Article 8. In being so determined, privacy is a democratic concept, capable of changing to suit standards of reasonableness. Thus for example, reproductive privacy can be overridden in favour of strongly held morals (A, B & C v Ireland (Application no. 25579/05) GC, [222]). By contrast in Puttaswamy (No. 1), Chelameswar J held that reproductive choice was an aspect of bodily privacy, into which State intrusion per se gave rise to concern.

The main difference in these two conceptualisations of privacy is a personal autonomy which is to a large extent subjective. Puttaswamy (No. 1) did not protect an inherence which was removed from the person, or one which the law determined solely through the prism of objectivity and reasonableness. Thus, privacy comprises the autonomous desire to create a personal space, the agency which creates that space and the boundaries of that space which objectively constitute the identity of the private person. Intrusion into this space, and thus interference with privacy, may therefore be tantamount to an invasion of identity, and thus personhood. A particular concern in Puttaswamy (No. 2), in the context of the challenge to the Aadhaar scheme, was what the Indian Supreme Court considered to be an indelible aspect of personhood: informational privacy.

The focus on informational privacy as an aspect of personhood is an important one when considering UK jurisprudence on how the public good of societal safety interacts with privacy. We begin with the UK Supreme Court decision in Re JR38 [2015] UKSC 42, which concerned the lawfulness of the publication of photographs in newspapers of a minor who participated in serious riots in Derry, Northern Ireland, in 2010. The (CCTV) photographs were published following the decision by police to release these to the press as part of a police operation codenamed ‘Exposure’ and designed to counteract sectarian rioting. While the Court  unanimously dismissed the appeal, the basis for doing so considerably divided the Court. Lord Kerr and Lord Wilson considered that while there had been an interference with the minor’s Article 8 rights, such an interference was justified in the context of the criminality which was sought to be addressed, while the other Justices felt unable to agree on whether Article 8 applied at all. Lord Toulson echoed Lord Hope in Kinloch v Her Majesty’s Advocate [2012] UKSC 62: “The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private” (Kinloch, [21]). The implication is thus: if an individual engages in criminal activity which is subsequently discovered to be such by law enforcement (even accidentally), Article 8 may not be infringed owing, not to the lack of the activity being private, but for the reason that the nature of the activity indulged in invites ex post facto legal opprobrium.

However, the principle in Kinloch, as subsequently applied in JR38, has been read by courts to apply in circumstances far removed from law enforcement or the criminal justice system. In Arthurs v News Group Newspapers Ltd [2017] NICA 70, the appellant was the son of an individual convicted of membership of a proscribed organisation, the details of which were  published by the respondent newspaper in circumstances where the appellant had already achieved a degree of nationwide fame through his appearance at a televised musical talent show. The appellant argued that the publication not only of his father’s conviction but also the conviction as that of the appellant’s father had engaged the appellant’s Article 8 rights. A unanimous Court of Appeal panel  dismissed the appeal, for the core reason that “The father’s convictions were in the public domain as was his relationship to the applicant, who voluntarily entered the public domain” and thus “the appellant had no legitimate or reasonable expectation of privacy” (Arthurs, [46]). That the appellant’s father’s conviction unavoidably intersected with the inherent aspect of the appellant’s identity as his father’s son in no way gained any acknowledgement from the Court.

Still further, in Townsend v Google Inc. and Google UK Ltd. [2017] NIQB 81, the plaintiff sought permission to serve proceedings outside the jurisdiction on the defendants for, inter alia, breach of the plaintiff’s privacy in having information concerning the plaintiff’s unspent convictions publicly available on the defendants’ search engine. The plaintiff argued that the publicly available information “involved particularly intrusive personal material relating to the plaintiff’s sexual orientation with a disproportionate effect on the plaintiff”. However, in refusing the plaintiff’s application, Stephens J (as he then was) held, “There is no arguable case as to an expectation of privacy in relation to the convictions which are not “spent” and this is the position regardless as to whether the expectation of privacy is articulated” (Townsend, [33]). In so holding, the Court in Townsend, as in Arthurs, refused to consider how information which is available in the public domain interacts with and affects individual autonomy and the autonomous regulation of identity. The position was most recently summarised by Mann J in Richard v BBC and South Yorkshire Police [2018] EWHC 1837 (Ch): “I do not find that there is an invariable right to privacy […] in my view the legitimate expectation is the starting point. I consider that the reasonable person would objectively consider that to be the case” (Richard, [251]).

The above authorities highlight an important principle: information, once publicly available (and lawfully so) loses any character of privacy regardless of how this information interacts with a person’s autonomy to regulate her identity. In Puttaswamy (No. 2), the Indian Supreme Court conceived the issue differently: having accepted that data-gathering intruded per se on informational privacy, the Court then moved to consider that the intrusion was justified as it empowered, rather than disabled, personhood. The difference between the two approaches is important for a simple reason: privacy is (to a considerable extent) as axiomatically subjective as identity. It is thus doctrinally (and logically) inapposite to construe aspects of identity as sufficiently private to warrant autonomous and subjective regulation (for example sexual orientation or gender identity) without recognising that the privacy of those aspects stems from privacy of identity as a whole. In isolating aspects of identity as engaging Article 8 according to an incorporeal reasonableness standard, the essential point of protecting private life is missed. Indeed, the isolation of aspects of identity has a more insidious effect – it is ultimately the law and not the individual who decides the nature of identity.

To clarify, I am in no way suggesting that the public availability of information relating to an individual’s criminality would be unjustifiable against even the right to privacy as understood in Puttaswamy (No. 1) – the Indian Supreme Court would likely have held that public safety justifies such availability, but crucially, recognised such availability as being per se intrusive. The value in such an approach is to recognise, as in Puttaswamy (No. 1), that individual privacy protects individual autonomy and agency, thus affording an individual a protected space in which to craft one’s identity in terms of its public perception. The law must therefore recognise when this autonomy is necessarily overridden for reasons of its exercise being harmful to other rights, rather than deny the very existence of this autonomy ab initio.

Conclusion

It is useful for courts to consider the actual relationship between privacy and personhood and the effects of privacy breaches on personhood. The Indian Supreme Court was perhaps late to the internet party when it finally recognised that the sheer volume of information available online warranted serious consideration of how privacy is affected, but more crucially conceptualised. The UK should not be left behind.

With sincere thanks to Professor Alison Young for her very helpful comments.

Anurag Deb, paralegal, KRW LAW LLP (Belfast) and BPTC student (University of Law)

(Suggested citation: A. Deb, ‘Privacy as a Foundational Right: Lessons from the Indian Supreme Court’, U.K. Const. L. Blog (4th Oct. 2018) (available at https://ukconstitutionallaw.org/))