Informational Privacy and the Proportionality Test

In one line

Any State interference with privacy has to be authorised by law, aimed at something legitimate, and no heavier than the aim requires; and it is the last of those three that decides real cases.

In the wording a student can write in an exam: informational privacy is the interest a person has in controlling the dissemination of information about themselves, which the 2017 judgment identifies as one of the three zones of privacy alongside spatial privacy and privacy of choice; and the proportionality test by which an interference with it is judged has, in the form the 2018 Bench applied, four parts: the measure must be designated for a proper purpose; the measures undertaken must be rationally connected to the fulfilment of the purpose; there must be no alternative less invasive measures; and there must be a proper relation between the importance of achieving the aim and the importance of limiting the right.

Why the test exists

A right that cannot be limited is a right nobody will apply, and a right that can be limited for any reason is not a right. Every constitutional system therefore needs a way of deciding when a limitation is acceptable, and there are only two candidates.

A categorical rule says what may never be done. It is predictable and it is brittle: it either forbids things that ought to be permitted in an emergency, or it is drafted so loosely that it forbids nothing.

A structured balancing test asks a series of questions in a fixed order. It is less predictable and much more useful, because it can take in a technology nobody had thought of, and because it forces the State to say what it is doing and why, which is itself a discipline.

India took the second, and the reason it matters for this paper is that informational privacy is exactly the interest a categorical rule cannot protect. There is no class of data that must never be collected and no purpose for which data may never be used; the wrong is always in the relation between how much was taken, from whom, for what, and for how long. Only a proportionality test can express that.

The three-fold requirement and the four-part test

Students routinely confuse these two, and the confusion is easy to remove: they are the same test at different levels of detail.

The three-fold requirement, from the 2017 judgment, is the frame: an invasion of life or personal liberty must meet (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.