Science Under Article 21

Once the guarantees of Part III are read together rather than in isolation, the content of "life" and "personal liberty" stops being fixed by a list. That is the whole mechanism, and a student who can state it in those terms can explain any of the extensions that follow without having to memorise them one by one.

The first limb: life, and therefore health

Pt. Parmanand Katara v. Union of India, AIR 1989 SC 2039, (1989) 4 SCC 286, decided on 28 August 1989.

Facts. The petitioner, describing himself as a human rights activist, filed a writ petition in the public interest on the basis of a newspaper report. A scooterist had been knocked down by a speeding car. He was taken to the nearest hospital, where the doctors refused to attend on him and said he should be taken to another hospital some twenty kilometres away that was authorised to handle medico-legal cases, meaning cases in which a criminal investigation is likely. He died before he could be taken there. The petitioner asked for directions that an injured person be given medical aid at once, with the procedural criminal law operating afterwards. The Union of India told the Court that no provision of the Indian Penal Code, the Code of Criminal Procedure or the Motor Vehicles Act prevented a doctor from attending a seriously injured person before the police arrived.

Held. Article 21 casts the obligation on the State to preserve life. Preservation of human life is of paramount importance, because once life is lost the position cannot be restored. Whether the patient is an innocent person or a criminal, those in charge of the health of the community are obliged to preserve life, since social laws do not treat death by negligence as a form of legal punishment. Every doctor, at a government hospital or otherwise, has the professional obligation to extend his services with due expertise for protecting life. No law or State action can be allowed to avoid or delay the discharge of that obligation, and laws of procedure that would interfere with it must give way.

Why it matters here. It is the step from a capability to a duty. Medical science had made it possible to save the scooterist; the hospital that could have saved him was standing in front of him; and article 21 is what turns "could" into "must". That step is the entire relationship between science and rights compressed into one case, and it is why a paper on science and human rights begins its Indian material here. The detail of the obligation to treat is taken up in [Emergency Treatment and the Duty to Treat], and the wider right to health under this article in [The Right to Health Under Article 21].

The second limb: privacy, and therefore data

Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161, (2017) 10 SCC 1, decided on 24 August 2017 by nine judges.

Facts. A Bench of three judges hearing the challenge to the Aadhaar scheme recorded, in its order of 11 August 2015, that the norms for and the compilation of demographic and biometric data by the Government were being questioned as a violation of the right to privacy. The Attorney General argued that the existence of a fundamental right of privacy was itself in doubt, relying on observations in the two early decisions described above. The petitioners answered that both rested on an approach later held not to be good law. Because the decisions that had since recognised privacy were given by smaller Benches, the question was referred upwards, and on 18 July 2017 a Constitution Bench directed that it be placed before nine judges.

Held. The Order of the Court disposed of the reference in four propositions. The decision holding that the right to privacy is not protected by the Constitution stands overruled. The second early decision stands overruled to the extent that it so holds. The right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as a part of the freedoms guaranteed by Part III. The later decisions that had taken that position lay down the correct law. In the judgment delivered for four of the nine judges, Chandrachud J recorded that the Court had to be sensitive to the opportunities and dangers posed to liberty in a digital world; that information is nonrivalrous, invisible and recombinant, so that a person may never learn that their data has been taken; that a State intervening to protect a legitimate interest must nonetheless put in place a regime satisfying a threefold requirement of a law, a legitimate State aim and proportionality; and that a data protection regime must not permit collection that discriminates on grounds including genetic or health status.

Why it matters here. The case exists because of a technology. Nobody asked the Supreme Court an abstract question about privacy; a biometric identification programme was built, and the question could no longer be avoided. That is the pattern this whole paper describes, and here it is visible in the procedural history of a single case. The result matters twice over for what follows: it puts personal data inside article 21, and by naming genetic and health status it reaches the subject matter of Modules II and III as well as Module IV. The threefold requirement is worked out in [Informational Privacy and the Proportionality Test], and the right itself in [Privacy as a Fundamental Right].

The third limb: the body and the mind

Selvi v. State of Karnataka, AIR 2010 SC 1974, (2010) 7 SCC 263, decided on 5 May 2010.

Facts. A group of criminal appeals raised the legality of administering three scientific investigative techniques to a person who had not consented: narcoanalysis, in which a drug is used to reduce a subject's inhibition against speaking; polygraph examination, which measures physiological responses while a subject answers questions; and the Brain Electrical Activation Profile test, which measures electrical activity in the brain on exposure to stimuli associated with a crime. Accused persons, suspects and witnesses had been subjected to them without consent. The State defended the practice on the footing that the techniques help where evidence is hard to gather by ordinary means, cause no bodily harm, would be used only to guide the investigation rather than led in evidence, and are a gentler alternative to the third degree, meaning the physical ill treatment of suspects in custody.

Held. Compulsory administration of the techniques violates the right against self incrimination in article 20(3), whose protection extends to the investigative stage and covers accused persons, suspects and witnesses alike; the results are testimonial in character and are not material evidence. Forcing a person to undergo any of them also violates the substantive due process required before personal liberty is restrained, and does so whether the technique is administered in an investigation or for any other purpose, because the results can expose a person to adverse consequences that are not penal. Compulsory administration is an unjustified intrusion into the mental privacy of the individual, would amount to cruel, inhuman or degrading treatment in the language of evolving international human rights norms, and conflicts with the right to a fair trial. A compelling public interest cannot justify diluting those rights. No individual should be forcibly subjected to any of the techniques. Voluntary administration remains possible with safeguards, but even then the results by themselves are inadmissible, because the subject does not exercise conscious control over the responses.

Why it matters here. It is the clearest Indian case of a scientific technique meeting a constitutional right directly, and it settles two things this paper needs. Article 21 protects the mind as well as the body, so a technology that reads a person without touching them is still an intrusion. And the usefulness of a technique to the State is not an answer to the person's refusal, which is the proposition that every later argument about surveillance, genetic testing and compelled disclosure rests on. The forensic setting is taken further in [Forensic Science and the Rights of the Accused].

Why this is the hook for the rest of the paper

The table is worth learning, because a question on this paper about almost any technology can be opened by identifying which limb it touches. That is the practical value of putting article 21 in Module I rather than leaving it to the module where each application is discussed.

A worked example

A State government proposes to require every person receiving a food subsidy to submit to an iris scan at the ration shop, and to store the scans centrally so that duplicate claims can be detected.

Which limb is engaged? Privacy, on the authority of the nine judge decision above, because an iris pattern is personal data and its central storage is informational privacy. Bodily integrity is engaged more weakly, because the scan is taken from the person but nothing is done to them.

Is the scheme therefore unconstitutional? No, and a student who stops at "privacy is a fundamental right" has answered half the question. Article 21 permits deprivation according to procedure established by law, and the threefold requirement recorded in that case asks whether there is a law, whether the aim is legitimate, and whether the means are proportionate to it. Preventing the diversion of a subsidy is capable of being a legitimate aim.

Where the argument actually happens. On proportionality, and on the design of the scheme rather than on its purpose. Is central storage necessary, or would matching on a card achieve the same result? What happens to a person whose scan fails to read? Is there a remedy? Those are the questions [Informational Privacy and the Proportionality Test] works through.

What article 21 has done. It has converted a policy argument about administration into a constitutional argument with a burden on the State. That conversion is the whole function of the article in this paper.

Limits, and what article 21 does not do

It binds the State. Part III defines "the State" to include the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. A private hospital, a private laboratory or a technology company is not, without more, bound by article 21. They are reached through statute, through the general law of wrongs, and through the State's own duty to make law that protects, which is why Module II is a module about Acts and not about the Constitution.

It permits deprivation. The article does not forbid interference with life or liberty. It requires a procedure established by law, and the case law above adds that the law must pursue a legitimate aim and be proportionate. An answer that treats article 21 as an absolute bar will be wrong on every realistic problem.

It is not a budget. A right that the State must not take away is easier to enforce than a claim that the State must provide. Article 21 works powerfully against action and less predictably against inaction, which is why the positive obligations in this subject are usually argued from the Covenant and from the directive principles alongside it. Those are taken up in [The Directive Principles on Health and Work].

What beginners get wrong

Saying article 21 was amended to include privacy or health. It was never amended. What changed was the reading of Part III as an integrated whole rather than as a set of watertight compartments.

Treating a Supreme Court decision as adding a new article. The decisions above did not create rights outside the text. They held what the words "life" and "personal liberty" already contain, which is why the reasoning matters more than the result.

Using article 21 against a private company. The Constitution restrains the State. The route to a private actor runs through legislation and through the general law, and confusing the two is the commonest structural error in answers on this paper.

Reading the nine judge decision as deciding the Aadhaar case. It decided the reference on whether privacy is a fundamental right. The validity of the scheme itself was a separate matter, decided later and by a different Bench.

Quick revision

• Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law. Never amended. Protects every person.
• The Constitution has no separate article on health, privacy or bodily integrity. All three sit inside article 21.
• The mechanism: Part III is read as an integrated whole, not as separate compartments.
• Life and health: article 21 casts the obligation on the State to preserve life, and every doctor has the professional obligation to protect it.
• Privacy: protected as an intrinsic part of the right to life and personal liberty under article 21, held by nine judges in 2017, with a threefold requirement of law, legitimate aim and proportionality.
• Body and mind: compulsory narcoanalysis, polygraph and brain profiling violate article 20(3) and intrude on mental privacy; a compelling public interest is no answer.
• Limits: it binds the State, it permits lawful and proportionate deprivation, and it is stronger against action than against inaction.

Test yourself

1. Article 21 does not mention health, privacy or the body. How does it protect them? By interpretation, not amendment. The article protects life and personal liberty for every person, and Part III came to be read as an integrated whole rather than as a set of self-contained provisions, so the content of those two words is not fixed by any list. On that footing the Supreme Court held that article 21 casts an obligation on the State to preserve life, that privacy is intrinsic to the right to life and personal liberty, and that the article protects mental as well as physical integrity.

2. State the facts and holding of the nine judge privacy decision, and say why a science paper cares about it. A three judge Bench hearing the challenge to a biometric identification scheme referred the question upward after the Attorney General argued that no fundamental right of privacy existed, and a Constitution Bench placed it before nine judges. They held that the two early decisions denying constitutional protection to privacy stand overruled, and that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as part of the freedoms in Part III. A science paper cares because the question was forced by a technology, and because the judgment brings personal data, including genetic and health data, inside the right to life.

3. Police wish to administer a lie detector test to a witness who refuses. Advise. The test may not be administered. Compulsory administration of a polygraph examination violates the right against self incrimination under article 20(3), whose protection extends to the investigative stage and covers witnesses as well as suspects and accused persons, and it violates the substantive due process required before personal liberty is restrained, because it is an unjustified intrusion into the mental privacy of the individual. That the results might be useful to the investigation is not an answer. If the witness later consents, the test may be conducted with safeguards, but the results by themselves would still be inadmissible, because the subject does not exercise conscious control over the responses.

4. Why is article 21 a weaker instrument against a private technology company than against a government department? Because Part III restrains the State, which is defined to include the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities in India or under the control of the Government of India. A private company is not within that definition, so a claim against it does not lie directly under article 21. It has to be brought under a statute, under the general law of wrongs, or by attacking the State's failure to make law that protects, which is why the regulation of medicine, data and technology in this book is statutory rather than constitutional.