Electoral bonds case | Supreme Court upholds right to keep political affiliations private from State intrusion, indirect influences

Supreme Court says lack of privacy about political affiliations will “disproportionately affect” those with non-mainstream views; can disenfranchise voters, subject them to surveillance, facilitate gerrymandering

A five-judge Constitution Bench comprising Chief Justice of India D. Y. Chandrachud, Justices Sanjiv Khanna, BR Gavai, JB Pardiwala and Manoj Misra pronounce the judgement on the petitions challenging the Electoral Bonds Scheme, in New Delhi on February 15, 2024. | Photo Credit: ANI

The fundamental right to privacy covers information about individual political affiliations, the Supreme Court ruled on Thursday.

In its judgment quashing the electoral bonds scheme, a five-judge Bench headed by Chief Justice of India D.Y. Chandrachud said that the State could misuse information about people’s political beliefs to suppress dissent, to discriminate in giving employment, and even subjecting such people to trolls.

“Forming political beliefs and opinions is the first stage of political expression. Political expression cannot be exercised freely in the absence of privacy,” Chief Justice Chandrachud observed. He added that a lack of privacy about political affiliations would “disproportionately affect” people whose views do not match with that of the mainstream.

‘Catastrophic’ implications

The court said that the lack of privacy about political affiliations would be “catastrophic” in the context of electoral franchise. Dwelling on the dangers of the State knowing individual political affiliations, Chief Justice Chandrachud said that such knowledge could be used by those in power to disenfranchise voters or put them under “surveillance”.

“A voter database developed through surveillance can identify voting patterns of electors and attempt to interfere with their opinions. For example, data of online purchase history, books bought to indicate the ideological leanings, clothing brands used to indicate social class to which the individual belongs, news consumed or newspapers subscribed, etc can be used to draw on the relative political affiliations. This information can be used to influence their votes,” Chief Justice Chandrachud observed.

Facilitates gerrymandering

On a systemic level, the Chief Justice noted, information on the political affiliations of voters could be used for “gerrymandering”.

“Constituencies can be delimited based on the electoral preferences of voters,” the judgment highlighted.

The content of privacy, the court said, cannot be limited to the choice of a life partner, procreation, and sexuality. Neither is privacy merely defined from the point of view of direct State intrusion.

“Privacy is defined as essential protection for the exercise and development of other freedoms protected by the Constitution, and from direct or indirect influence by both State and non-State actors,” the Chief Justice explained.

Published - February 15, 2024 07:55 pm IST