Privacy Cases and the Standard of Judicial Review in India
Speaker: Mariyam Kamil
Mariyam Kamil is a DPhil candidate in law at the University of Oxford. Her research examines the constitutional right to privacy in India.
Abstract: The attempt in this discussion will be to identify the different standards of review that the Supreme Court of India has employed to its public law jurisprudence generally, and to privacy jurisprudence in particular. It will be demonstrated that four different standards are discernible from the case-law: a) rationality; b) reasonableness; c) strict scrutiny; and d) proportionality. The talk will aim to identify the content of each of these standards and set out the circumstances in which they apply in India.
Privacy cases, it will be demonstrated, oscillated between the ‘reasonableness’ standard and the ‘compelling state interest’ limb of strict scrutiny from 1954 till 2017. In 2017, Puttaswamy I hinted at proportionality being the standard for privacy cases in India. Puttaswamy II has now put it beyond doubt that proportionality is the standard of review that applies to all future privacy cases in India.
The decision in Puttaswamy II will be discussed in some detail, particularly from the standard of review perspective. It will be shown that the Court culled out a ‘hybrid’ version of proportionality for Indian privacy cases. This is an amalgam of the models of proportionality proposed by Professor Bilchitz and Professor von Bernstorff. It will also be demonstrated that although the Court went to great length to carve out this nuanced hybrid test, it did not properly apply it to the facts before it.
Although, I defend proportionality as the standard for privacy cases, I remain critical of the ‘hybrid’ version of proportionality that the Supreme Court has adopted for privacy cases in India.
Discussant: Gautam Bhatia
Gautam Bhatia is a D.Phil (Law) Candidate at the University of Oxford. He read for the BCL and the MPhil at Oxford (2011 – 2013), and for an LLM at the Yale Law School (2014). He is the author of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution (OUP 2015) and The Transformative Constitution (HarperCollins India 2019). He practiced for four years as a lawyer in New Delhi, and was part of the legal teams challenging the constitutionality of Section 377 of the Indian Penal Code (prohibiting same-sex relations) and the Aadhaar project (India’s national biometric identification scheme). His work has been cited by the Supreme Court of India, and by various High Courts.