Blog of the International Journal of Constitutional Law

India’s Supreme Court Expands Freedom

Menaka Guruswamy, Research Scholar and Lecturer, Columbia Law School and Advocate, Supreme Court of India

[This article was originally published in the New York Times on September 10, 2017.]

On Aug. 24, the Supreme Court of India, in a rare unanimous judgment, declared privacy a constitutional right.

The court unflinchingly reasoned that the rights to life and liberty of which privacy is a part protect the sanctity of the home and relationships like marriage, procreation and sexual orientation.

It is a ruling that will forever affect the social fabric of this country and reaffirm a constitutional morality in a time of deep social and political division — a judgment that can be equated with Brown v. Board of Education in the United States.

The ruling comes as the Hindu nationalist Bharatiya Janata Party, which came to power in 2014, is attempting a cultural reconfiguration of Indian society — policing choices about food, gender roles, sexuality, marriage and religion. Such actions are at odds with the values of secularism, equality and dignity, and freedom of expression, conscience and religion that are enshrined in India’s progressive Constitution of 1950. This troubling context makes the decision of the Supreme Court especially empowering.

The Supreme Court is also ground zero for challenges to the efforts of Prime Minister Narendra Modi’s government to force all Indians to sign up for the biometric databank, called the Aadhar project, in which retina scans, fingerprints and demographic information is stored under 12-digit unique identification numbers. The privacy ruling was necessary since the constitutional status of privacy had to be established before the court adjudicated on various challenges to the Aadhar database that are still pending.

The government has mandated that Aadhar data be linked to citizens’ information from bank accounts, tax filings, medical records and phone numbers. The government would have unregulated access to such information — and there is no statute to guard against abuse or to allow an individual to file a complaint.

Essentially, under the Aadhar project, a citizen’s data now belongs to the Indian government and not to the individual. There are fears that the project would endow the Indian government with enormous knowledge that could be deployed against minority communities and individuals who disagree with its politics and policies.

Twenty-two petitioners have challenged the constitutionality of Aadhar. The lead petitioner, K. S. Puttaswamy, a 91-year-old retired judge, contested the requirement that people have an Aadhar number to obtain cooking gas and to purchase grains from the public distribution system.

The Aadhar case prompted the Supreme Court to assess whether Indians had privacy rights under their Constitution. Without a constitutional interest in privacy, there can be no right to protection of personal data. Now, with their jurisprudence on privacy, the justices have emerged as champions of personal liberties.

Jawaharlal Nehru, India’s first prime minister and a leader in the struggle against British colonial rule, had spent substantial amounts of time in colonial courts and jails. As the Constituent Assembly of India was debating the making of the Constitution in the late 1940s, Nehru was skeptical about the role of the Supreme Court and feared that the judiciary would obstruct change.

To its credit, the Supreme Court of independent India became deeply invested in protecting marginalized individuals from the negligence of the government by establishing socio-economic rights like the right to food, education and livelihood and the right to a clean environment through a rather expansive appreciation of the right to life and liberty.

However, the court has been cautious when it comes to the rights of the individual confronted by an invasive state and a domineering society. Its judgment defining privacy as a fundamental right represents a tremendous change in direction.

In the ruling, the court envisaged the right to privacy as flowing through other crucial rights like equality, dignity, life, liberty, expression, association and speech.

The justices navigated privacy as a multifaceted right. They highlighted its contours through violations including forced feeding, lack of reproductive choices and telephone tapping.

They emphasized privacy as a necessary condition for “seclusion,” which in turn enables the exercise of freedoms like speech, expression and association.

The court also made clear that bodily integrity, informational privacy and privacy of personal choice is inextricably linked to democracy, dignity and fraternity, which are provided for by the Constitution.

This conception of privacy as illustrated by violations, as facilitating seclusion, and as enabling classical civil and political rights and linked to the larger political project of democracy and fraternity, is what makes the Supreme Court judgment such a watershed moment. The judges reminded India 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.”

The court also cleansed its own institutional reputation by choosing constitutional morality over majoritarian morality. An 1860 colonial law that criminalized same-sex intimacy as “unnatural sex” stayed on the books in independent India. In 2009, the Delhi High Court annulled it, saying it violated the rights of L.G.B.T. Indians. A few years later, the Supreme Court overruled the High Court judgment and criminalized same-sex relations again.

In the privacy judgment, the justices of the Supreme Court tore apart the homophobia of their predecessors and castigated their reasoning. The court, though, stopped short of overruling its 2013 decision since it has yet to hear the curative petitions and constitutional challenge filed by L.G.B.T. Indians.

The judgment has also given legal and constitutional impetus to other issues before the court, including petitions arguing for criminalization of marital rape and challenges to beef bans. The jurisprudence of choice in personal and public life will be argued as a binding constitutional principle in these cases as well as the same-sex cases.

And the privacy ruling represents a remarkable shift in the Supreme Court from a reticent post-colonial court on matters of individual liberty to an erudite constitutional court safeguarding freedom in the terrifying times of new India. The court is showing that it will be the institution most responsible for India’s enduring as a constitutional democracy.


4 responses to “India’s Supreme Court Expands Freedom”

  1. Mangesh Patwardhan Avatar
    Mangesh Patwardhan

    The judgment has also given legal and constitutional impetus to the issue of (current) non-criminalization of sexual violence against adult males. For a brief period of 58 days (in 2013), this was criminalised. Later, the provisions were rolled back, possibly under protest from the same section which champions criminalization of marital rape. Now, the constitutional validity of excluding certain acts against male victims (and / or by women) from the ambit of certain Sections in the Indian Penal Code would surely be tested. These include Section 354A (sexual harassmnent) and Section 375 (rape) and also the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. I’d be eager to know what Ms. Guruswamy has to say on this!

  2. Menaka Avatar

    There is no doubt that rape must be criminalised irrespective of gender (of the perpetrator or survivor). A public interest litigation on making the offence of rape – gender neutral is currently pending before the Delhi High Court.

    1. Mangesh Patwardhan Avatar
      Mangesh Patwardhan


  3. […] MENAKA GURUSWAMY once again underlines the epochal importance of the decision of the Supreme Court of India to grant Indians a fundamental right to privacy in these times of Hindu nationalist expansion of power. […]

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