JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER V. Union of India and Others

 

JUSTICE K.S. PUTTASWAMY (RETD.) AND ANOTHER

V.

Union of India and Others

In the Supreme Court of India

 

Detail of the Case:

·       Title of the Case   ·       Citation   ·       Date of Decision   ·       Appellant   ·       Respondent   ·       Bench     ·       Statue Involved

Justice K.S. Puttaswamy (RETD.) And Another v. Union of India and Others. Writ Petition (Civil) No. 494 of 2012   26.09.2018   Justice K.S. Puttaswamy (RETD.) And Another   Union of India and Others.   A.K. SIKRI, J. (For Chief Justice, himself and A.M. Khanwilkar, J.)   Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as the ‘Aadhaar Act’) and Constitution of India

 

Abstract:

The case is related to the “Aadhar Card Scheme” that was introduced by the Government of India in 2006. The nine bench judge held that the right to privacy is a part of fundamental right which can be traced to the Article 14, 19 and 21 of the Indian Constitution, which also can be termed as Golden Traingle. 

The Challenge in this batch of cases were divided into two different parts: The Executive’s Scheme dated 28.01.2009 notified by Government of India by which Unique Identification Authority of India (hereinafter called as the UIDIA) and the Aadhaar (Tareted Delivery of Finance and Other Subsidies, Benefits and Services) Act, 2016. The first part consists 16 petition filed under Article 32 of the Constitution of India and second part consist seven transferred petition to be heard along with  Writ petition filed under Article 32.

 

Issues raised:

Whether requirement under Aadhaar Act to give one's demographic and biometric information is violative of fundamental right of privacy ?

 

Whether the provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar number are unconstitutional and do not pass three fold test as laid down in Puttaswamycase ?

 

Whether or not there is any fundamental right of privacy under the Constitution of India?

 

Whether or not the decision made by the Court that there are no such fundamental rights in M.P. Sharma &Ors. vs. Satish Chandra, DM, Delhi &Ors. and also, in Kharak Singh vs. The State of U.P, is that the correct expression of the constitutional position?

 

Argument’s :

 

The Respondents mainly relied upon the judgments in the cases of M.P. Sharma, as well as the case of Kharak Singh, which had observed that the Constitution did not specifically protect the right to privacy as a fundamental right. The judgments were pronounced by an eight Judge and a six Judge Bench respectively, and the Respondents argued that they would therefore be binding over the judgments of smaller benches given subsequently. The Respondents further argued that the makers of the Constitution did not intended to make the right to privacy as a fundamental right.

As per the, submission of the Petitioners was that M.P. Sharma and Kharak Singh were founded on principles expounded in A.K. Gopalan vs. State of Madras (1950 SCR 88). The Petitioners argued that A.K. Gopalan, which construed 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 RustomCavasji Cooper vs. Union of India ((1970) 1 SCC 248). Therefore, the Petitioners submitted that the basis of the two earlier decisions was not valid. It was also urged that in the seven Judge Bench decision in Maneka Gandhi vs. Union of India ((1978) 1 SCC 248), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved while the decision of the majority was overruled. 

In addition to this, other arguments made during the hearing dealt with the scope of the right to privacy. The Petitioners argued for a multi-dimensional model of privacy as a fundamental right, while the Respondents stated that the right to privacy was an ambiguous concept and could only be crystallized as a statutory and common law right.

The Petitioner argued that the Constitution would have to be read in line with the Preamble, while keeping in mind that privacy was a natural right, and an international human right. The Respondents advocated for a narrow approach which focused on the Constitution as the repository of fundamental rights and the Parliament as the only body which had the powers to modify the same. 

 

Court Verdict:

The Supreme Court, through six separate opinions, pronounced privacy to be a distinct and independent fundamental right under Article 21 of the Constitution. The crux of the decision spelled out an expansive interpretation of the right to privacy - it was not a narrow right against physical invasion, or a derivative right under Article 21, but one that covered the body and mind, including decisions, choices, information and freedom. Privacy was held to be an overarching right of Part III of the Constitution which was enforceable and multifaceted. Details regarding the scope of the right were discussed in the multiple opinions.

 

The Court overruled the judgments of M.P. Sharma, and Kharak Singh, insofar as the latter held that the right to privacy was not a fundamental right. With respect to M.P. Sharma, the Court held that the judgment was valid for maintaining that the Indian Constitution did not contain any limit to the laws on search and seizure analogous to the Fourth Amendment in the United States Constitution. However, the Court held that the Fourth Amendment was not an exhaustive concept of privacy and an absence of a comparable protection in the Constitution did not imply that there was no inherent right to privacy in India at all – and therefore the conclusion in M.P. Sharma was overruled. The Court rejected the insular view of personal liberty (“ordered liberty”) adopted by Kharak Singh, which Justice D.Y. Chandrachud referred to as the “silos” approach borrowed from A.K. Gopalan. The Court observed that this approach of viewing fundamental rights in water-tight compartments was abrogated after Maneka Gandhi. The Court further observed that he majority opinion in Kharak Singh suffered from an internal contradiction, as there was no legal basis to have struck down domiciliary visits and police surveillance on any ground other than privacy – a right which they referred to in theory but held not to be a part of the Constitution. The Court also held that the decisions subsequent to Kharak Singh upholding the right to privacy were to be read subject to the principles laid down in the judgment. 

 

The Court also analysed the affirmative case for whether the right to privacy was protected under the right to life, personal liberty and the freedoms guaranteed under Part III of the Constitution. The Bench established that privacy was “not an elitist construct”. It rejected the argument of the Attorney General that the right to privacy must be forsaken in the interest of welfare entitlements provided by the state.The Court also emphasised the fact that sexual orientation was an essential facet of privacy. It further discussed the negative and positive content of the right to privacy, where the State was not only restrained from committing an intrusion upon the right but was also obligated to take necessary measures to protect the privacy of an individual.The judgment held informational privacy to be a part of the right to privacy. The Court while noting the need for a data protection law left it in the domain of Parliament to legislate on the subject.