JUSTICE K.S. PUTTASWAMY (RETD.

V.

UNION OF INDIA

Equivalent Citation - 1978 AIR 597

Petitioner:

Justice K.S. Puttaswamy (Retd.)

Respondent:

Union of India

Date of Judgment: 24/08/2017

BENCH:

9-Judge Bench.

J.S. Khehar (CJ.), DY Chandrachud (J.), RK Agrawal (J.), Rohinton Fali Nariman (J.),

AM Sapre (J.), Sanjay Kishan Kaul (J.), S Abdul Nazeer (J.), J Chelameswar (J.),

S.A Bobde (J.)

SUBMITTED TO: SUBMITTED BY:

MS. SUGANDHA RAKSHIT TANEJA

B. Com LLB (Hons.)

189/16 SECTION-D

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 ACKNOWLEDGEMENT
Any work requires the effort of many people and this is no different. First of all, I would like
to express my heartiest thanks to the Director of University Institute of Legal Studies, Prof.
(Dr.) Rattan Singh for giving me an opportunity to study in such a great institution. Then I
thank my teacher Ms. Sugandha for firstly making me understand the contents of my topic
and then giving me a wonderful opportunity to present this topic in form of an assignment.
Her support and teaching helped me a lot to complete this assignment.

I would also like to thank my friends who were always available to me for help and also
helped me collect data for my project through various sources.

Regardless of anything, I wish to express my gratitude to those who may have contributed to
this assignment, even though anonymously.

Rakshit Taneja

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CONTENTS
Table of Authorities ................................................................................................................... 4

Case Analysis ............................................................................................................................. 5

Case Summary and Outcome ................................................................................................. 5

Facts of the Case .................................................................................................................... 5

Decision Overview ................................................................................................................. 6

Right to Privacy and Its Impact ................................................................................................. 8

Conclusion ............................................................................................................................... 14

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Table of Authorities
Related International and/or Regional laws

1. ICCPR, art. 17

2. ECHR, art. 8

India, M.P Sharma v. Satish Chandra, [1954] S.C.R. 1077

India, Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

India, Gobind v. State of Madhya Pradesh, (1975) 3 S.C.R. 946

India, Life Insurance Corporation of India v. Manubhai, 1992 (3) S.C.R. 595

India, R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632

India, Narayan v. High Court of Allahabad, (2011) 13 S.C.C. 155

India, Bihar Public Service Commission v. Rizwi, (2012) 13 SCC 61

India, Thalappalam Service Cooperative Bank Ltd. v. State of Kerala, (2013) 16 S.C.C. 82

India, National Legal Services Authority v. Union of India (2014), 5 SCC 438

India, Suresh Koushal v. NAZ Foundation, (2014) 1 SCC 1

India, Const. art. 21

India, Const. art. 19

Other Countries National Standards, law or jurisprudence

U.S., Griswold v. Connecticut, 381 U.S. 479 (1965)

U.S., Roe v. Wade, 410 U.S. 113 (1973)

U.S., Olmstead v. United States, 277 U.S. 438 (1928)

S. Afr., Const. sect. 10

U.S. Const. Fourth Amendment

U.S., Constitution, First Amendment

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CASE ANALYSIS
Case Summary and Outcome
A nine-judge bench of the Supreme Court of India held unanimously that the right to privacy
was a constitutionally protected right in India, as well as being incidental to other freedoms
guaranteed by the Indian Constitution. The case, brought by retired High Court Judge
Puttaswamy, challenged the Government’s proposed scheme for a uniform biometrics-based
identity card which would be mandatory for access to government services and benefits. The
Government argued that the Constitution did not grant specific protection for the right to
privacy. The Court reasoned that privacy is an incident of fundamental freedom or liberty
guaranteed under Article 21 which provides that: “No person shall be deprived of his life or
personal liberty except according to procedure established by law”. This is a landmark case
which is likely to lead to constitutional challenges to a wide range of Indian legislation, for
example legislation criminalising same-sex relationships as well as bans on beef and alcohol
consumption in many Indian States. Observers also expect the Indian Government to
establish a data protection regime to protect the privacy of the individual. Further, the case is
likely to be of wider significance as privacy campaigners use it to pursue the constitutional
debate over privacy in other countries.

Facts of the Case

The latest case had concerned a challenge to the government’s Aadhaar scheme (a form of
uniform biometrics-based identity card) which the government proposed making mandatory
for access to government services and benefits. The challenge was made before a three-judge
bench of the Supreme Court on the basis that the scheme violated the right to privacy.
However, the Attorney General argued on behalf of the Union of India that the Indian
Constitution does not grant specific protection for the right to privacy. He based this on
observations made in the case of M.P. Sharma v. Satish Chandra1 (an eight-judge bench) and
Kharak Singh v. State of Uttar Pradesh2 (a five-judge bench). However, a subsequent eleven-

1
MP Sharma v. Satish Chandra, 1954 SCR 1077.
2
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.

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judge bench found that fundamental rights were not to be construed as distinct, unrelated
rights, thereby upholding the dissenting view in Kharak Singh. This also formed the basis of
later decisions by smaller benches of the Supreme Court which expressly recognized the right
to privacy.

It was in this context that a Constitution Bench was set up and concluded that there was a
need for a nine-judge bench to determine whether there was a fundamental right to privacy
within the Constitution.

The Petitioner argued before the nine-judge bench that this right was an independent right,
guaranteed by the right to life with dignity under Article 21 of the Constitution. The
Respondent submitted that the Constitution only recognized personal liberties which may
incorporate the right to privacy to a limited extent. The Court considered detailed arguments
on the nature of fundamental rights, constitutional interpretation and the theoretical and
philosophical bases for the right to privacy as well as the nature of this right.

Decision Overview

The nine-judge bench of the Supreme Court unanimously recognized that the Constitution
guaranteed the right to privacy as an intrinsic part of the right to life and personal liberty
under Article 21. The Court overruled M.P. Sharma, and Kharak Singh in so far as the latter
did not expressly recognize the right to privacy.

The right to privacy was reinforced by the concurring opinions of the judges in this case
which recognized that this right includes autonomy over personal decisions (e.g. consumption
of beef), bodily integrity (e.g. reproductive rights) as well as the protection of personal
information (e.g. privacy of health records). The concurring judgments included specific
implications of this right, some of which are illustrated below:

J. Chandrachud (on behalf of himself, C.J. Khehar, J. Agrawal and J. Nazeer): The opinion of
these judges stated that privacy was not surrendered entirely when an individual is in the
public sphere. Further, it found that the right to privacy included the negative right against
State interference, as in the case of criminalization of homosexuality, as well as the positive
right to be protected by the State. On this basis, the Judges held that there was a need to
introduce a data protection regime in India.

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J. Chelameswar: In his opinion, the Judge said that the right to privacy implied a right to
refuse medical treatment, a right against forced feeding, the right to consume beef and the
right to display symbols of religion in one’s personal appearance etc.

J. Bobde: The Judge observed that consent was essential for distribution of inherently
personal data such as health records and that right to privacy is inextricably bound up with all
exercises of human liberty – both as it is specifically enumerated across Part III, and as it is
guaranteed in the residue under Article 21. It is distributed across the various articles in Part
III and, mutatis mutandis, takes the form of whichever of their enjoyment its violation
curtails.

J. Nariman: In this concurring opinion, the Judge classified the facets of privacy into non-
interference with the individual body, protection of personal information and autonomy over
personal choices.

J. Sapre: The Judge said that, in addition to its existence as an independent right, the right to
privacy included an individual’s rights to freedom of expression and movement and was
essential to satisfy the constitutional aims of liberty and fraternity which ensured the dignity
of the individual. He recognized that “right to privacy” is a part of fundamental right of a
citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but
is subject to certain reasonable restrictions, which the State is entitled to impose on the basis
of social, moral and compelling public interest in accordance with law.

Similarly, He also observed that the “right to privacy” has multiple facets, and, therefore, the
same has to go through a process of case-to-case development as and when any citizen raises
his grievance complaining of infringement of his alleged right in accordance with law.

J. Kaul: The Judge discussed the right to privacy with respect to protection of informational
privacy and the right to preserve personal reputation. He said that the law must provide for
data protection and regulating national security provided there exists certain exceptions that
allow for interception of data by the State.

The hon’ble Supreme Court also recognized that the right was not absolute but allowed for
restriction where such restriction was provided for by the law, corresponded to a legitimate
aim of the State and was proportionate to the objective it sought to achieve.

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 Right to Privacy and Its Impact
“Privacy” is not something that one is merely entitled to, it’s an absolute prerequisite. The
present case deals with various aspects of privacy and talks about bodily privacy,
communicational privacy, informational privacy, decisional privacy etc. It talks about the
inalienable nature of Right to privacy and its relationship with dignity.

The present judgement will act as an interplay between privacy and transparency and
between privacy and free speech. The question of breach of privacy arose in 2015 that
whether Aadhaar scheme violates right to privacy or not. Thereafter, In the year 2017 Nine
Judge Bench of Supreme Court unanimously held that Right to Privacy is a Fundamental
Right which would not be an absolute right but subject to certain reasonable restrictions.

The question arises that whether the decision given by the apex court was appropriate or not?
To answer this question following aspects shall be taken into consideration. Taking into
consideration the present scenario, with the everchanging technology it has become almost
impossible to lead a completely secluded and private life. Today, technology has made it
possible to enter a citizen’s house without knocking at his/her door and this is equally
possible both by the State and non-State actors. Whether the issue involves religion or
sexuality of an individual the privacy is considered to be the most important aspect. Not only
this but also due to growing concerns of Corporations infringing upon the sensitive and
personal information of individuals for their mala fide interests, it was the need of the hour to
recognize Right to Privacy as a fundamental right. Therefore, to protect intellectual and
decisional privacy of individuals i.e. the ability to make intimate decisions the apex court was
justified in giving an appropriate and fair decision.

The next question arises whether this landmark judgement of court conform with existing law
or what would be its impact on the law in prevalence? The fact that privacy is now
recognized as a fundamental right makes it an inviolable right. It would have its impact on
different legislations such as Aadhaar Act which came into force in the year 2016, the
upcoming data protection Act, and many other evolving legislations in the country. To
determine the constitutionality of any provision or legislation it must satisfy the tests laid
down under Article 14, 19 and 21 of Constitution of India.

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The important point that shall be taken into consideration is that the question of Privacy in
Indian context first arose in the case of M.P. Sharma v. Satish Chandra, where it was held
that there is no right to privacy under Indian Constitution. Whereas the above decision stands
overruled by the 2017 Judgement and the reason given by Justice Bobde who was a part of
nine judge bench, states that, “M.P. Sharma is unconvincing because it arrived at its
conclusion without enquiry into whether a privacy right could exist in our Constitution on an
independent footing or not.” Also, Justice Chandrachud states that, “The decision in M P
Sharma did not decide whether a constitutional right to privacy is protected by other
provisions contained in the fundamental rights including among them, the right to life and
personal liberty under Article 21. Hence the decision cannot be construed to specifically
exclude the protection of privacy under the framework of protected guarantees including
those in Articles 19 or 21.” Therefore, from the observation of different judges it is clearly
visible that the reasoning given in MP Sharma case and the present case is not consistent with
each other.

The other important case which dealt with the right to privacy was Kharak Singh v. State of
U.P., in this case the Supreme Court considered various forms of police surveillance and
upheld restrictions such as shadowing, travel restrictions etc. Thus, the court ruled that there
exists no fundamental right to privacy, but at the same time struck down the night domiciliary
visit as violative of “ordered liberty” under Article 21 of Indian Constitution. The above
decision of the court stands overruled by the present judgement due to following reasons, the
court’s rejection of Kharak Singh was based on the reasoning that the judgment was
internally contradictory, because the Court could not have struck down domiciliary visits on
any other ground but that of privacy. Justice Nariman noted, “If the passage in the judgment
dealing with domiciliary visits at night and striking it down is contrasted with the later
passage upholding the other clauses of Regulation 236 extracted above, it becomes clear that
it cannot be said with any degree of clarity that the majority judgment upholds the right to
privacy as being contained in the fundamental rights chapter or otherwise. As the majority
judgment contradicts itself on this vital aspect, it would be correct to say that it cannot be
given much value as a binding precedent.” It shall be taken into consideration that the view
opined in Kharak Singh case is not free from difficulty because at one instance it recognises
“ordered liberty” whereas the fundamental right to privacy is given no importance. It shall be
remembered that privacy, liberty, dignity and freedom are all intertwined. Selfhood of the
person is of utmost importance. Therefore, the nine judge bench is correct in their view of
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overruling both MP Sharma and Kharak Singh judgement and recognising the Right to
Privacy as a fundamental right and further bringing this right within the ambit of Articles 19
and 21 of Indian Constitution. The next question arises whether privacy is latent within
liberty, autonomy and human dignity. To answer this question, opinions of different judges
shall be taken into consideration. Justice Chelameswar defines ‘privacy’ as comprising of
three aspects “repose”, “sanctuary” and “intimate decision”. “Repose” refers to freedom from
unwarranted stimuli, “sanctuary” to protection against intrusive observation, and “intimate
decision” to autonomy with respect to the most personal life choices. According to him all
these three aspects are so essential for liberty of human beings guaranteed by both Articles 21
and 19 of Constitution.

According to Justice Bobde, Privacy eminently qualifies as an inalienable natural right and
thus concerned with two values i.e. innate dignity and autonomy of man. Privacy is therefore
necessary in both its mental and physical aspects as an enabler of guaranteed freedoms.
Therefore, for the rights to be effectively exercised the liberties granted under Article 19 and
21shall provide for seclusion. According to him, Privacy in all its aspects constitutes the
springboard for the exercise of the freedoms guaranteed by Article 19(1). It is essential to the
exercise of freedom of conscience and the right to profess and practice religion vide Article
25. There exists an element of privacy in Article 28(3) which expressly recognizes the right
of a student attending an educational institution recognized by the state, to be left alone.

According to Justice Nariman, a fundamental right to privacy would cover the following
three aspects i.e. bodily integrity, informational privacy and privacy of choice and these are
to be linked with the Preamble of the Constitution of India through the dignity of the
individual which encompasses the right of the individual to develop to the full extent of his
potential. And this development can only be if an individual has autonomy over fundamental
personal choices and control over dissemination of personal information which may be
infringed through an unauthorized use of such information. Therefore, for the self-sufficient
growth of an individual it is very important that right of privacy is guaranteed to him which
lay at the heart of core principles of any democracy.

According to Justice Chandrachud, The Constitution does not contain a separate article
telling us that privacy has been declared to be a fundamental right. Nor have we tagged the
provisions of Part III with an alpha suffixed right of privacy: this is not an act of judicial
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redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of
life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate
expression of the sanctity of the individual. It is a constitutional value which straddles across
the spectrum of fundamental rights and protects for the individual a zone of choice and self-
determination. The important point which shall be taken into consideration is that the right to
privacy has not been made limited only to the Part III of Constitution rather the concept of
privacy has been attached to the basic principles of life and is considered to be an essential
part of an individual’s life. The linking of privacy with bodily integrity, informational self-
determination and intimate choices makes it inseparable from the meaningful exercise of
guaranteed freedoms such as speech, association, movement, personal liberty, and freedom of
conscience. Privacy is a golden thread that runs through liberty. There are different categories
of privacy which overlap such as personal interest, autonomy, physical space, property and a
number of overlapping interests. Privacy of the individual is an essential aspect of dignity.
Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is
an entitlement or a constitutionally protected interest in itself. Also, to keep a check on the
arbitrary action of the state, privacy and human dignity are of utmost importance.
In this modern age of internet it is of vital importance that there exists a proper mechanism
for control of information available on World Wide Web. The question of informational
privacy thus comes into picture which is still not recognised in India. Currently, more and
more data is in public domain, the importance of informational privacy protection is now
paramount. Informational privacy is a facet of the right to privacy. The dangers to privacy in
an age of information can originate not only from the state but from non-state actors as well.
The fact shall be taken into consideration that privacy is not only a property right but is also a
tangible infringement. Therefore, the need of the hour is the creation of such a regime that
requires a careful and sensitive balance between individual interests and legitimate concerns
of the state.

Justice Kaul states “The State must ensure that information is not used without the consent of
users and that it is used for the purpose and to the extent it was disclosed”. It appears that the
need for ‘consent’ in the data protection regime will be one that is constitutionally mandated
as part of the right to privacy. The legitimate aims of the state would include for instance
protecting national security, preventing and investigating crime, encouraging innovation and
the spread of knowledge, and preventing the dissipation of social welfare benefits.

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The other important point which was discussed in this judgement was privacy not being an
elitist concept and thus the court rejected the argument that right to privacy must be forsaken
in the interest of welfare entitlements provided by the State. Our Constitution places the
individual at the forefront of its focus, guaranteeing civil and political rights in Part III and
embodying an aspiration for achieving socio- economic rights in Part IV. Therefore, it cannot
be said that there is no requirement of civil and political rights by poor rather for the welfare
of different communities at large it is very important that all the three rights that is civil
political and socio-economic rights are interconnected to each other. Therefore, privacy
cannot be construed to be a privilege available only to the elite class rather it shall be
considered as an essential and inseparable right of all the individuals. Also, the theory that
civil and political rights are subservient to socio-economic rights has been urged in the past
and has been categorically rejected in the course of constitutional adjudication by the Court.
Hence, civil and political rights and socio-economic rights are complementary and not
mutually exclusive.

The other important issue which was discussed in this case was the reasonable restrictions
which can be imposed against right to privacy. The court held that a law which encroaches
upon the right to privacy will have to “withstand the touchstone of permissible restrictions
on fundamental rights” Any infringement of privacy must be by a law which is “fair, just
and reasonable”. The three-fold requirement for such infringement would be: “(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”. There should be a requirement for compelling state interest for
those privacy concerns which require ‘strictest scrutiny’. According to Justice Kaul, the
reasonable restrictions can be imposed on grounds of national security, public interest and
grounds enumerated in the proviso to Article 19 of the Constitution.

The next important point which needs to be discussed is the impact of this judgement on
Aadhaar. The Aaadhaar Act will have to satisfy the three pronged test as discussed above,
since under the Aadhaar Act personal information such as biometric information is collected
and processed by the government. Other than Aadhaar Act itself, the manner in which the use
of Aadhaar Card is being mandated by the government for various purposes, will also need to
be tested on the basis of the privacy judgment. There are certain aspects of Aaadhaar which
effect the privacy of an individual such as (i) security of the Aadhaar system, (ii) the inability
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of the individual to file complaints (for violation under the Aadhaar Act) relating to theft or
misuse of their data, and (iii) the inability to withdraw / delete one’s data once registered with
the UIDAI, will also likely come under scrutiny. The form and manner in which consent must
be taken from the users in digital domain and the option available to user to withdraw consent
for such information from being shared with third parties is also an important issue. Also,
lack of adequate remedy for Indian citizens against foreign entities such as Google, Twitter
etc. is a serious concern because in case of breach of privacy by such entities there exists no
regulatory framework. Therefore, there exists a serious threat of violation of privacy due to
disclosure of such information.
Another important point which was discussed was availability of right to privacy against both
state and non state-entities because it is not only the state which needs to safeguard the
personal information of an individual but also the non-state or private entities which collect
such information from individuals for the purpose of influencing the choices of individuals
online.

Further this case will also have impact on different choices of an individual which includes
the right to choose the food and drink which one consumes. Therefore, the ban on beef by
state of Maharashtra and the ban on alcohol imposed by state of Bihar will now be dealt in
accordance with the right of privacy available to individuals.

The next important issue on which this case will have impact are the rights of LGBT
community. The judgment of Justice Chandrachud, supported by the judgment of Justice
Kaul, has effectively held that Section 377 in so far as it criminalises homosexual acts
between consenting adults violates their right to privacy. Justice Chandrachud observed that,
“The Koushal3 rationale that prosecution of a few is not an index of violation is flawed and
cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt
with the privacy—dignity-based claims of LGBT persons on this aspect.”

3
Suresh Kumar Koushal and Another v. NAZ Foundation and others, Civil Appeal No. 10974 of 2013.

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 Conclusion

Therefore, on the basis of above observations it can be concluded that the judgement of the
court was correct and all the important and relevant points were considered by the court and
the fact that privacy is important part of both dignity and liberty of an individual has been
upheld by the court. This landmark judgement will have a long term impact on different
issues such as Aadhaar issue, Data protection regime, LGBT rights etc. The freedom of
choice regarding different things will be influenced by right of privacy available to an
individual. Therefore, this unanimous decision of 9 judge bench of Supreme Court is a
stepping stone towards a long term change. The Right to Privacy has been given such a wide
scope that it is left to the interpretation of court in different cases whether or not privacy is
violated. Further, proper test has been laid down which is to be applied while ascertaining
that whether there exist sufficient grounds for imposing reasonable restrictions upon one’s
right to privacy.

Therefore, the court overruled the smaller bench judgement in the cases of Kharak Singh and
MP Sharma as much part which did not recognise the right to privacy of an individual and
recognised the Right to Privacy as fundamental right and inherent part of the Constitution.

Most importantly this right of privacy has not been restricted within the ambit of Article 14,
19 or 21 of Indian Constitution rather giving it a broad interpretation the court has held this
right to be a part and parcel of Constitution.

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