RIGHT TO PRIVACY: A CONSTITUTIONAL RIGHT

JUSTICE K.S PUTTUSWAMY(Retd.) Vs. UNION OF INDIA & Ors.

(2017)10 SCC 1
Introduction

Justice K. S. Puttaswamy (Retd.) vs Union Of India And Ors is a historic judgment

wide ranging 547 pages given by the Hon'ble Supreme Court of India on 24th
August, 2017. A nine judge bench assembled to revisit the question whether right
to privacy is a constitutional right. The Court unanimously held that Right to
Privacy is a Fundamental Right under Articles 14, 19 and 21 of the Indian
Constitution. Further, it was held that the right to privacy is an intrinsic element of
the right to life and personal liberty under Article 21 and as a constitutional value
which is embodied in the fundamental freedoms embedded in Part III of the
Constitution. It was also ruled that like the right to life and liberty, privacy is not
an absolute right.

Parties to the Case

Petitioner - Justice K.S.Puttaswamy (Retd)

Respondent - Union of India

Summary of Facts

‘Aadhaar’ was a project initiated by the Government of India for building a Unique
Identification database of personal identity and biometric information concerning
every Indian. The project was decided to be set up in three phases. In January
2009, the Planning Commission of India passed a notification on UIDAI. In 2010,
the National Identification Authority of India Bill was passed by the Commission.
The Registration under this project was made mandatory for filing tax returns,
opening bank accounts, securing loans, buying and selling property or even making
purchases of fifty thousand rupees and above.
In November 2012, Retired Justice K S Puttuswamy filed a PIL in the Supreme
Court of India challenging the constitutional validity of Aadhaar on the ground that
it violates right to privacy of the citizens.
The Petition was heard by a three judge Bench on 11th August, 2015 and the
matter was referred to a larger Bench. Meantime, the Aadhaar Act was passed in
2016. The petitions challenging the validity of the Act was then merged with
previous writ petition. In May 2017, Jairam Ramesh who was the Former Union
minister and Congress leader moved Supreme Court challenging the decision to
treat the Aadhaar Bill as a money bill. Consequently, a five judge Constitution
Bench was formed on 18th July, 2017 which further referred the matter to a nine
judge Bench.
The Supreme Court hearing the petition, passed an interim order staying the
compulsory linking of Aadhaar for getting benefits. On 24th August 2017, it was
ruled that the right to privacy to a Fundamental Right under Article 21 of the
Indian Constitution.

Issues Before the Court

1. Whether the decision in MP Sharma v Sathish Chandra (MP Sharma) is correct

in law?

2. Whether the decision in Kharak Singh v State of UP (Kharak Singh) is correct in

law?

3. Whether the right to privacy is a constitutionally protected value under Art.21 of

the Constitution of India and a part of the freedoms guaranteed by Part III of the
Constitution?

4. Whether the decisions subsequent to Kharak Singh v State of UP enunciating

that Article 21 covers right to privacy is correct in law?

Submissions by Parties on Issues

Petitioner’s Submissions

⚫ The decisions in M P Sharma and Kharak Singh were founded on principles

expounded in A K Gopalan v State of Madras which construed each provision
contained in the Chapter on fundamental rights as embodying a distinct protection,
was held not to be good law by an eleven-judge Bench in Rustom Cavasji Cooper
v Union of India. Hence the petitioners submitted that the basis of the two earlier
decisions is not valid. Moreover, it was also urged that in the seven-judge Bench
decision in Maneka Gandhi v Union of India , the minority judgment of Justice
Subba Rao in Kharak Singh was specifically approved of and the decision of the
majority was overruled. Additionally, the relevance of these decisions has expired
in the context today’s vastly changed circumstances.

⚫ The right to privacy is very much a fundamental right which is co-terminus with
the liberty and dignity of the individual.

⚫ This right is found in Articles 14, 19, 20, 21 and 25 when read with the Preamble
of the Constitution.

⚫ Several international covenants have stated that the right to privacy is

fundamental to the development of the human personality and that these
international covenants need to be read into the fundamental rights chapter of the
Constitution.

⚫ A State action that violates the fundamental right to privacy must contain at least
four elements, namely:

1) The action must be sanctioned by law;

2) The proposed action must be necessary in a democratic society for a legitimate

aim;

3) The extent of such interference must be proportionate to the need for such
interference;

4) There must be procedural guarantees against abuse of such interference.

Respondent’s Submissions

⚫ The existence of a fundamental right of privacy is in doubt in view of decisions

in M P Sharma v Satish Chandra, District Magistrate, Delhi by a Bench of eight
judges and in Kharak Singh v State of Uttar Pradesh rendered by a Bench of six
judges. The Respondent submitted that each of these decisions contained
observations that the Indian Constitution does not specifically protect the right to
privacy.
⚫ Privacy is an inherently vague, uncertain and subjective concept that it fails to
withstand the constitutional scrutiny and cannot, therefore, be accorded the status
of a fundamental right.
⚫ Further, codified statutory law in India already confers protection to the
individual’s right to privacy. Therefore, no further expansion of the rights
contained in Part III of our Constitution is at all warranted.

⚫ The right to privacy must be forsaken in the interest of welfare entitlements

provided by the state.

⚫ Privacy is merely a common law right.

⚫ The right to life stands above the right to personal liberty, and any claim to
privacy which would destroy or erode this basic foundational right can never be
elevated to the status of a fundamental right.

⚫ The right to privacy cannot be claimed when most of the aspects which are
sought to be protected by such right are already in the public domain and the
information in question has already been parted with by citizens.

Judgement

The nine judge Bench gave six separate opinions and the majority opinion
represented by Dr. DY Chandrachud J formed the binding part. The key outcomes
of the judgment are summarized as follows;
⚫ The Court held that the decisions in M P Sharma and Kharak Singh which hold
that the right to privacy is not protected by the Constitution stands over-ruled.

⚫ The Court unanimously ruled that 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 of the Constitution and is subject to the same
restraints which apply to those freedoms.

⚫ Further, it was also held that privacy is not an absolute right. An invasion of life
or personal liberty must meet the three-fold requirement of i) legality; ii) legitimate
state aim; and iii) proportionality.

⚫ The dignity of the individual, equality between human beings and the quest for
liberty are the foundational pillars of the Indian Constitution.
⚫ It was held that informational privacy is a facet of the right to privacy and the
Court commended to the Union Government the need to examine and put into
place a robust regime for data protection.

⚫ The decisions subsequent to Kharak Singh which have enunciated that the right
to privacy is protected under Art 21 was held to be the correct position in law.

Consequently, the Aadhaar Act, 2016 was upheld and its unconstitutional
provisions were struck down by the Court in 2018, relying on the postulates laid
down in this case.

Conclusion

This landmark judgement has great significance in Indian legal and political
framework and it has already paved way to what is called as the Puttuswamy
Effect. In 2018, in line with the Privacy judgement, the Supreme Court made
another historic decision by strucking down Sec 377 of IPC which criminalizes
consensual same-sex relationships between adults. It was used as precedent in
other landmark cases like Joseph Shine v Union of India(2018), Indian Young
Lawyers Association and Ors. v The State of Kerala and Ors.(2018), Central
Public Information Officer, Supreme Court of India v Subash Chandra Agarwal
(2019), Indian Hotel and Restaurant Association and Ors. v The State of
Maharashtra and Ors (2019) and many other cases. It was further used to
challenge beef bans and liquor bans by many States.
As it touched almost every aspects of privacy especially, the issues concerning
digital privacy, the judgment has been recognized as a revolutionary and of great
importance and both in India and in internationally. It imparts constitutional
protection to data privacy and mandates the government to establish data
protection rules. The Private Data Protection Bill, 2019 reinstates the continuing
relevance of this judgment in the era of informational privacy.