Justice K.S.Puttaswamy(Retd.) vs. Union of India

 

CASE COMMENT

-       Chaitanya Thakur

Case Title: Justice K.S.Puttaswamy(Retd.) vs. Union of India on 24th August, 2017

Equivalent Citation:(2017) 10 SCC 1, AIR 2017 SC 4161, Writ Petition (Civil) No. 494 of 2012

 

Bench: Justice J.S.Khehar, Justice J.Chelameswar, Justice D.Y.Chandrachud, Justice RohintonNariman, Justice Sanjay KishanKaul, Justice R. K. Agrawal, Justice A Nazeer, Justice S.A.Bobde and Justice A. Sapre.

 

PETITIONER(S)……..................“JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER”

V.

RESPONDENT(S)……………................……………… “UNION OF INDIA AND OTHERS”

Introduction

The landmark case,Justice K. S. Puttaswamy (Ret.) and Anr. Versus Union of India was decided by a nine-judge bench of the Supreme Court of India. The bench’s ruling in the case provided a fresh perspective on the citizens’ right to privacy. According to Article 21 of the Indian Constitution, privacy is a constitutionally protected right in India, as determined by the Court in a 547-page ruling that is both exceptional and comprehensive. This precedent-setting case will undoubtedly result in constitutional challenges against a vast array of Indian laws.

Procedural Background

 

The backdrop of the current case of Puttaswamy stems from the preceding judgments, first M.P. Sharmavs. Satish Chandraand later Kharak Singhvs. State of Uttar Pradesh, which dealt with the question of whether the Constitution’s Fundamental Rights also includethe right to privacy. In M.P. Sharma, a bench of eight judges ruled that the American Fourth Amendment, which only protects “the right of the people in persons, houses, papers and effects, against unreasonable seizures and searches,” does not address privacy in its totality, even in the United States, and there is no rationale for importing a wholly distinct provision from a foreign country to integrate it into the right against self-incrimination [Article 20(3)]. In Kharak Singh, a bench of six judges provided a restrictive construction of “Personal Liberty,” and many police surveillance methods based on a “history sheet” were deemed constitutional, along with travel limits, reporting of police station presence, etc. The court also determined that the right to privacy is not protected by Article 21 of the Indian Constitution.

Facts of the case

This case was started by a petition filed by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court pertaining to the Aadhaar Project, which has been led by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the Indian government, under the jurisdiction of the Ministry of Electronics and Information Technology, in accordance with the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. The Aadhaar number was a 12-digit identification number provided to Indian citizens by the UIDAI based on their biometric and demographic data. It is the responsibility of the UIDAI to store the data in a centralised database. Numerous welfare programmes were connected to the Aadhaar project to expedite the delivery of services and eliminate fraudulent recipients. In 2012, retired High Court Judge K.S. Puttaswamy filed a case against the Union of India contesting the legitimacy of Aadhaar on the grounds that it violates the “Right to Privacy.”

In 2015, a 3-judge bench of the Court challenged the government’s standards and collection of demographic biometric data on the grounds that they violated the right to privacy. While dealing with the issue, the 3-judge bench took notice of several Supreme Court cases wherein the right to privacy was recognised as a constitutionally protected basic right. Nevertheless, the following judgments that upheld the existence of a constitutionally protected right to privacy were issued by smaller benches than in M.P. Sharma and Kharak Singh. The case was submitted to a Constitution Bench for review of the precedents established in M.P. Sharma and Kharak Singh, as well as the legality of subsequent rulings. On 18th July 2017, a Constitution Bench determined that a bench of 9 judges should decide the case.

Issues

 

1. Whether the fundamental right of privacy is guaranteed under the IndianConstitution, and if yes, where is it located, and what are its parameters?

2. Whether the Court’s rulingabout the right to privacy in the cases ofM.P. Sharma and Kharak Singhthe correct expression of the constitutional position?

 

Provisions of Law involved

Article 21 of the Indian Constitution, which deals with the fundamental right to life and liberty.Article 21 is contained in Part III of the Constitution.

 

Contentions Of The Parties

Arguments given by Petitioner

The Petitioner argued that the right to privacy is an inherent part of the right to life and personal liberty under Article 21, and as a component of the freedoms granted by Part III of the Indian Constitution, it must be safeguarded by the Indian Constitution. The Petitioner claimed before the 9-judge bench that this right was an independent right guaranteed by the right to life with dignity under Article 21 of the Constitution. Moreover, it was stated that the information gathered and linked to Aadhar may be abused, undermining the framework of people’s privacy.It was also proposed to review the soundness of the judgement mentioned in Kharak Singh vs. The state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the basis that it infringes Article 21 of the Constitution’s Right to Privacy.

The Petitioners contended that M.P. Sharma and Kharak Singh were built on the ideas articulated in A.K. Gopalan vs. State of Madras. The Petitioners stated that the 11-Judge Bench in RustomCavasji Cooper vs. Union of India ruled that A.K. Gopalan, which interpreted each provision of the Chapter on Fundamental Rights as constituting a different protection, was not sound law. Consequently, the Petitioners argued that the rationale for the two previous judgements was invalid. In addition, it was argued that in the Maneka Gandhi vs. Union of India judgement by a 7-judge bench, the minority judgement of Justice Subba Rao in Kharak Singh was particularly upheld, whereas the majority decision was overruled. As a fundamental right, the Petitioners advocated for a multidimensional concept of privacy. The Petitioners contended that the Constitution must be interpreted in accordance with the Preamble while bearing in mind that the right to privacy is a natural and universal human right.

 

Arguments given by Respondent

The Attorney General for the State relied heavily on the rulings in the cases of M.P. Sharma and Kharak Singh, in which it has been determined that the Constitution did not specifically protect the right to privacy. The judgements were made by an eight-judge and a six-judge bench, respectively, and the Respondents maintained that they had precedence over later decisions made by smaller benches. The Respondents also asserted that the framers of the Constitution did not intend to establish the right to privacy as a fundamental right, and hence the right to privacy was not protected by the Constitution. Respondents said that the right to privacy was a vague concept that could only be recognized as a statutory and common law right. The Respondents contended for a restricted approach that emphasised the Constitution as the repository of fundamental rights and the Parliament as the sole organ with the authority to amend them. It was suggested that the recognition of the right to privacy would result in an amendment to the Constitution. Therefore, there is no room for judicial interpretation. It was contended that a blanket right to privacy could not be interpreted as an element of the fundamental rights.

Ratio Decidendi

 

In six separate opinions, the Supreme Court declared privacy a distinct and independent fundamental right under Article 21 of the Constitution. The court held that it was not a narrow right against physical invasion or a derivative right under Article 21, but one that included the body and mind, encompassing decisions, choices, information, and freedom. Privacy was deemed an encompassing, multidimensional, and enforceable right under Part III of the Constitution. Abhay Manohar Sapre J. noted that in order to realise the constitutional goals of liberty, fraternity, and individual dignity, it is vital to protect freedom of movement, speech, and expression, which are intrinsic to the right to privacy. Justice S.K. Kaul concurred, stating, “Privacy is a concomitant of the right of the individual to exercise control over his or her personality and life and personal liberty are not a creation of the constitution; instead these rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of human element which dwells within.” Justice Chelameshwar argued that an individual’s privacy must not only be protected in an abstract sense but also in an empirical sense.

 

Regarding M.P. Sharma, the Court determined that the Fourth Amendment did not provide an exhaustive definition of privacy and that the lack of comparable protection in the Indian Constitution did not suggest that there was no inherent right to privacy in India; thus, the conclusion in M.P. Sharma was overturned. The Court dismissed Kharak Singh’sinsular perspective of personal liberty (ordered liberty), which Justice D.Y. Chandrachud referred to as the “silos” approach drawn from A.K. Gopalan. After Maneka Gandhi, the Court determined that viewing fundamental rights in airtight compartments was no longer acceptable. The Court also noted that the majority view in Kharak Singh suffered from an internal contradiction, as there was no legal justification to have invalidated domiciliary visits and police surveillance on any basis other than privacy – a right they made reference to in theory but held was not a part of the Constitution. The Court also examined the affirmative case to determine whether the right to privacy was safeguarded by the right to life, personal liberty, and freedoms granted by Part III of the Constitution. The Court determined that privacy was “not an elitist construct”. It dismissed the Attorney General’s contention that the right to privacy must be forfeited for the sake of state-provided welfare entitlements.

 

Notably, while ruling that the right to privacy is not absolute, the decision also provided an outline of the level of judicial review that must be followed when the government invades a person’s privacy. It ruled that the right to privacy may be restricted if the intrusion meets three conditions:

 

1. Legality, which presupposes the existence of law;
2. Need, defined in terms of a legitimate state aim; and
3. Proportionality, which ensures a rational nexus between the ends and the means adopted to achieve them

 

Justice S.K. Kaul added a fourth criterion mandating “procedural guarantees against abuse of such interference.” Justice J. Chelameswar stated that the “compelling state interest” threshold should only be used for privacy issues that merit “strict scrutiny.” Regarding other privacy issues, he determined that Article 21’s just, fair, and reasonable criterion would be applicable. In his opinion, the applicability of the “compelling state interest” threshold would vary according to the facts and circumstances of each case. Additionally, the Court stressed that sexual orientation was a crucial aspect of privacy. It then elaborated on the negative and positive aspects of the right to privacy, in which the state was not only prohibited from infringing on the right but also required to take efforts to safeguard an individual’s privacy. The court ruled that informational privacy is a component of the right to privacy. While acknowledging the necessity for data protection legislation, the Court left it to Parliament to act on the matter.

Judgement Of The Court

The nine-judge bench of the Supreme Court unanimously held that:

 

a)     The M P Sharma judgment, which held that the Constitution does not protect the right to privacy, stands over-ruled.

b)    The Kharak Singh judgment is overruled to the degree that it holds that the Constitution does not protect the right to privacy.

c)      The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and part of the freedoms guaranteed by Part III of the Constitution.

d)    Decisions subsequent to Kharak Singh which have enunciated the position in (c) establish the correct position in law.

 

Inference

 

A historic nine-judge bench of the Supreme Court gave the ruling in Justice K. S. Puttaswamy (Ret.) and Anr. Versus Union of India. Consequently, it sets a precedent binding on all Courts until overturned by a greater bench. The decision is not based on a majority opinion but rather on a diversity of opinions since it provides a broad construction of various aspects of privacy. Four out of nine judges had a plural opinion, but at the conclusion of the ruling, they all signed an order that binds future decisions. These privacy rulings served as a cure against any executive actions. As he provided a liberal meaning to personal liberty and movement restrictions, K. Subba Rao’s dissenting judgement in the Kharak Singh case was appropriate for the status quo of the right to privacy.

The extensive examination of problems of digital privacy, which are becoming more significant in India and abroad, is a noteworthy aspect of the joint judgement. The fate of the Aadhaar programme is uncertain, and in view of the majority’s observations, there is a considerable probability that the Supreme Court may now strike down laws that prohibit same-sex relationships. The combined ruling makes it plain that the Indian government is now required to adopt a data protection policy to safeguard privacy rights. Numerous Indian states’ restrictions on beef and alcohol use may now be challenged using the right to privacy guaranteed by the Constitution. Indian and foreign observers have applauded the judgement; it places the right to privacy at the centre of constitutional discussion in the world’s biggest democracy and is sure to give privacy activists throughout the globe support and motivation.

 

Conclusion

The Supreme Court of India has again emerged as the lone guardian of the Indian Constitution, effectively establishing a legal basis for privacy safeguards in India. The ruling addresses all concerns and establishes that privacy is a fundamental and inalienable right under Article 21 of the Indian Constitution. The decision paves the path for legalising homosexuality in India in Navtej Singh Johar v. Union of India and for the abolition of the provisions of the offence of adultery in Joseph Shine v. Union of India.