Right to privacy in India: existence, scope & challenges
Keywords: Aadhaar
standard of review
horizontality
India
Indian Constitution
privacy

This thesis examines the constitutional right to privacy in India. It focusses on five main themes: (i) the theoretical conception of privacy that has been expounded by the Indian Supreme Court; (ii) the Supreme Court’s reasoning in support of reading privacy — an unenumerated right — into the Indian Constitution; (iii) the classification of privacy into sub-rights or clusters of rights; (iv) whether privacy is guaranteed against the State, or private persons, or both; and (v) the standard(s) of judicial review that apply to privacy cases in India.
The thesis makes five key claims.
First, the modern privacy jurisprudence in India makes it clear that the constitutional right to privacy is underpinned by two values: autonomy and dignity. In recognising these values as the conceptual foundation for privacy, the Indian Supreme Court has evolved a conception of privacy that places individual personality at the centre of analysis. However, the Court’s reasoning does leave some uncertainty as to the relative weight that Indian Courts should place upon the values of autonomy and dignity in future cases.
Second, the reasons offered by the Supreme Court in support of reading privacy into the Indian Constitution give rise to two consequences: (i) there is a doctrinal tension between the Court’s reasoning and its previous jurisprudence on the notion of ‘concomitant rights’; (ii) the Court proceeded on the (incorrect) basis that the status of privacy as a ‘natural right’ is determinative, or relevant, to its status as a fundamental right under the Constitution.
Third, the constitutional right to privacy in India consists of three variants: physical (or spatial) privacy, informational privacy and decisional privacy. Although these variants often overlap, each of them has a distinct sphere of operation. Moreover, the Court needs to ask different questions depending on the variant of privacy that it is considering.
Fourth, there is support for the indirect horizontal application of the constitutional right to privacy in India. However, the direct horizontal application of the right is at a crossroads. It is likely that the Supreme Court will be called on to make a choice in the coming years. Two options are open to the Court. The first is to adopt a model of direct horizontal application. The alternative option is to recognise that different entities exhibit varying degrees of ‘publicness’. Which among these options will commend itself to the Supreme Court remains to be seen.
Fifth, in general, the Supreme Court of India has employed four different standards of review in its rights adjudication: (i) reasonableness; (ii) Wednesbury unreasonableness; (iii) strict scrutiny; and (iv) proportionality. The standard of review that applies to the Court’s privacy adjudication is proportionality. Having examined the nature of proportionality review in India, in 2018, the Supreme Court adopted what I refer to as the ‘hybrid model’ of proportionality. The thesis argues that the hybrid model is excessively complex to the extent of being obscure. Notably, rather than attempting to apply this test correctly, subsequent Indian cases have largely ignored the hybrid model.