On 24 August 2017, a nine judge bench of the Supreme Court of India

handed down its decision in the important constititutional case

of Puttaswamy v Union of India [pdf]. In a remarkable and wide ranging 547
page judgment the Court ruled unanimously that privacy is a constitutionally
protected right in India. This is landmark case which is likely to lead to
constitutional challenges to a wide range of Indian legislation.

Background

The case arose out of a challenge to a constitutional challenge to

the Aadhaar project, which aims to build a database of personal identity
and biometric information covering every Indian. More than a billion Indians
have so far been registered in the Aadhaar programme, which sees citizens
issued with a 12-digit number that aligns to specific biometric data such as
eye scans and fingerprints. Registration is now become mandatory for filing
tax returns, opening bank accounts, securing loans, buying and selling
property or even making purchases of 50,000 rupees (£610) and above.

In 2012, Justice K.S. Puttaswamy (Retired) filed a petition in the Supreme

Court challenging the constitutionality of Aadhaar on the grounds that it
violates the right to privacy.

The Government argued that there was no constitutional right of privacy in

view of a unanimous decision of eight judges in M.P. Sharma v. Satish
Chandra ([1954] SCR 1077) and a decision by a majority of four judges
in Kharak Singh v. State of Uttar Pradesh ([1964] 1 SCR 332).

The case came before a three judge Bench of the Court which, on 11 August
2015, ordered that the matter should be referred to a larger Bench of the
Court. On 18 July 2017, a five judge Constitution Bench ordered the matter
to be heard by a nine judge Bench. While it awaited clarification on the right
to privacy, the bench hearing the constitutional challenge to Aadhaar passed
an interim order restricting compulsory linking of Aadhaar for benefits
delivery

Judgment

The nine judges of the Court gave six separate opinions, producing what
must be a contender for the longest reasoned judgment ever produced by a
court. These judgments defy short summary and only a few key themes can
be picked out.

The leading judgment is a tour de force, given on behalf of four judges by Dr

D Y Chandrachud J in 266 pages. It deals, in detail, with the Indian domestic
case law on privacy and the nature of constitutional rights. It also considers
Comparative Law on Privacy (from England, the US, South Africa, Canada, the
European Court of Human Rights and the Inter-American Court of Human
Rights). Various criticisms of the privacy doctrine – from Bork, Posner and
feminist critics – are addressed.

The problem for the Petitioners was that the Indian Constitution [pdf] does
not contain an explicit privacy right. Nevertheless, the Indian Constitution is
a living instrument. The Courts have sought to give effect to the “values”
which the Constitution it contains by interpreting express fundamental rights
protections as containing a wide range of other rights. The crucial provision
for this purpose is Article 21 which provides that

“No person shall be deprived of his life or personal liberty except according
to procedure established by law”

Chandrachud J points out that this provision has been interpreted as

containing, inter alia, the rights to a speedy trial, legal aid, shelter, a healthy
environment, frredom from torture, reputation and to earn a livelihood (for a
list see [150]). Privacy is an incident of fundamental freedom or liberty.

In an important section of the joint judgment headed “Essential Nature of

Privacy”, Chandrachud J analyses the concept of privacy as being founded on
autonomy and as an essential aspect of dignity ([168] to [169]):

“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” [169]

In the next section of the judgment Chandrachud J considers “Informational

Privacy”, referring to a range of academic writing. In particular, the
judgment includes an infographic from an article by Bert-Jaap Koops et al.,
“A Typology of Privacy” to illustrate the fundamental notions of privacy:

The judgment refers with approval to the 2012 Report of the Expert Group
on Privacy[pdf] – which sets out nine principles (which have much in common
with the EU data protection principles).

The conclusions are set out at pages 260-265 of the joint judgment. It is
held that privacy is a constitutionally protected right which emerges,
primarily, from Article 21 of the Constitution. This is not an absolute right
but an interference must meet the threefold requirement of (ii) Legality; (ii)
the need for a legitimate aim and (iii) proportionality (p.264). It is also noted
that, as informational privacy is a facet of the right to privacy the
Government will need to put in place a robust regime for data protection.

Two other important points are dealt with in the joint judgment.

Firstly, it emphasises the fact that sexual orientation is an essential attribute

of privacy thus casting doubt on the case of Suresh Kumar Koushal v. Naz
Foundation (2014) which upheld section 377 of the Indian Penal Code,
which effectively criminalizes same-sex relationships between consenting
adults. A reconsideration of Suresh Koushal is pending before a constitution
bench of the Supreme Court.

Secondly, Chandrachud J overturns the judgment of his father (Chandrachud

CJ) in the notorious case of ADM Jabalpur v Shivakant Shukla (1976) which
held that fundamental rights could be suspended during the Emergency
([121]). Though the ADM Jabalpur judgment was nullified by
44th constitutional amendment it has now finally been put to rest. In his
concurring judgment Sanjay Kishan Kaul J commented

“the ADM Jabalpur case … was an aberration in the constitutional

jurisprudence of our country and the desirability of burying the majority
opinion ten fathom deep, with no chance of resurrection”

R F Nariman J gave a judgment of 122 pages and four other judges gave
substantive concurring judgments.

By its order the Court ruled that the right to privacy is protected as part of
the right to life and fundamental liberty under Article 21. The case was
referred back to the original bench three judges for decision on the merits.

Comment

This decision has been recognised as being of great legal and political
significance. The Opposition Congress party leader said that it “will rank
among the most important judgments delivered by the Supreme Court since
the advent of the constitution of India.” The Hindustan
Times commented that “The country could not have got a better gift from
the judiciary for its 70th year of independence”. The case has been seen as a
major setback for the Modi Government.

A striking feature of the joint judgment is the detailed treatment of issues of

digital privacy which are of increasing important both in India and
internationally.

The future of the Aadhaar programme has been placed in doubt and, in the
light of the comments of the majority there is a strong possibility that the
Supreme Court will now strike down legislation criminalising same-sex
relationships. The joint judgment makes it clear that the Indian Government
is now under an obligation to establish a data protection regime to protect
the privacy of the individual.

The constitutional right to privacy can now be used to challenge to bans on

beef and alcohol consumption in many Indian states. BJP-dominated
governments around the country implemented the bans as part of their
efforts to enshrine Hindu religious practices into the law.
The decision has been welcomed by Indian and international commentators,
it puts the right to privacy at the heart of constitutional debate in the world’s
largest democracy and is likely to provide assistance and inspiration for
privacy campaigners around the world.

Hugh Tomlinson QC is a specialist in media and information law at Matrix

Chambers and an editor of Inforrm.

https://inforrm.org/2017/09/04/case-law-india-puttaswamy-v-union-of-india-supreme-
court-recognises-a-constitutional-right-to-privacy-in-a-landmark-judgment-hugh-tomlinson-
qc/
The nine-judge bench of the Supreme Court has unanimously delivered
its judgment in Justice K.S. Puttaswamy (Retd.) v. Union of
India holding that privacy is a constitutionally protected right which not
only emerges from the guarantee of life and personal liberty in Article 21
of the constitution, but also arises in varying contexts from the other
facets of freedom and dignity recognised and guaranteed by the
fundamental rights contained in Part III of the Indian constitution.

The bench has overruled its decisions in M.P. Sharma v Satish

Chandra, District Magistrate, Delhi (1954), rendered by a bench of eight
judges and, in Kharak Singh v State of Uttar Pradesh (1962), rendered
by a bench of six judges, which contained observations that the Indian
constitution does not specifically protect the right to privacy.

Justice D.Y. Chandrachud, while delivering the main judgment, on

behalf of the Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and
Justice S. Abdul Nazeer has held that privacy is intrinsic to life, liberty,
freedom and dignity and therefore, is an inalienable natural right.
Justices Chelameswar, Bobde, Sapre and Kaul have also agreed with
Justice Chandrachud’s judgment.

The judgment says:

“Life and personal liberty are inalienable rights. These are rights which
are inseparable from a dignified human existence. The dignity of the
individual, equality between human beings and the quest for liberty are
the foundational pillars of the Indian constitution…

Life and personal liberty are not creations of the constitution. These
rights are recognised by the constitution as inhering in each individual as
an intrinsic and inseparable part of the human element which dwells
within.”
Tracing the evolution of privacy in various cases and writings, the
judgment concludes that:

“Privacy includes at its core the preservation of personal intimacies, the

sanctity of family life, marriage, procreation, the home and sexual
orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal choices
governing a way of life are intrinsic to privacy. Privacy protects
heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate
zone to the private zone and from the private to the public arenas, it is
important to underscore that privacy is not lost or surrendered merely
because the individual is in a public place. Privacy attaches to the person
since it is an essential facet of the dignity of the human being.”
The judgment contradicts all the arguments raised against the concept of
privacy. While countering the submission that the constitution makers
had rejected the concept of privacy, it has been held that:

“To live is to live with dignity. The draftsmen of the constitution defined
their vision of the society in which constitutional values would be
attained by emphasising, among other freedoms, liberty and dignity…
Dignity is the core which unites the fundamental rights because the
fundamental rights seek to achieve for each individual the dignity of
existence. Privacy with its attendant values assures dignity to the
individual and it is only when life can be enjoyed with dignity can liberty
be of true substance… The draftsmen of the constitution had a sense of
history− both global and domestic– as they attempted to translate their
vision of freedom into guarantees against authoritarian behaviour… The
backdrop of human suffering furnished a reason to preserve a regime of
governance based on the rule of law which would be subject to
democratic accountability against a violation of fundamental freedoms…
Hence, it would be an injustice both to the draftsmen of the constitution
as well as to the document which they sanctified by constricting its
interpretation to an originalist interpretation.”
The judgment makes it clear that privacy is “not an elitist construct”. The
judgment has rejected the argument of the attorney general that right to
privacy must be forsaken in the interest of welfare entitlements provided
by the state. The judgment says:

“The refrain that the poor need no civil and political rights and are
concerned only with economic well-being has been utilised though
history to wreak the most egregious violations of human rights. Above
all, it must be realised that it is the right to question, the right to
scrutinise and the right to dissent which enables an informed citizenry to
scrutinise the actions of government. Those who are governed are
entitled to question those who govern, about the discharge of their
constitutional duties including in the provision of socio-economic
welfare benefits. 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 this
court.”
In doing so, the judgment invokes the writings of Nobel laureate Prof.
Amartya Sen. For instance, the judgment relies upon Sen’s classic The
Idea of Justice (Penguin Books, 2009) in holding:
“In the Indian context, Sen points out that the Bengal famine of 1943
“was made viable not only by the lack of democracy in colonial India but
also by severe restrictions on reporting and criticism imposed on the
Indian press, and the voluntary practice of ‘silence’ on the famine that
the British-owned media chose to follow”. Political liberties and
democratic rights are hence regarded as ‘constituent components’ of
development.”
The judgment, while holding that there is an intrinsic relationship
between development and freedom, quotes from Sen’s writings in The
Country of Young Boys (Oxford University Press, 2015) as follows:

“…development cannot really be seen merely as the process of increasing

inanimate objects of convenience, such as raising the GNP per head, or
promoting industrialization or technological advance or social
modernization. These accomplishments are, of course, valuable – often
crucially important – but their value must depend on what they do to the
lives and freedoms of the people involved. For adult human beings, with
responsibility for choice, the focus must ultimately be on whether they
have the freedom to do what they have reason to value. In this sense,
development consists of expansion of people’s freedom.”
The judgment also rejected the submission that privacy is a privilege for
the few. It was held:

“[I]t is privacy which is a powerful guarantee if the state were to

introduce compulsory drug trials of non-consenting men or women. The
sanctity of marriage, the liberty of procreation, the choice of a family life
and the dignity of being are matters which concern every individual
irrespective of social strata or economic well being. The pursuit of
happiness is founded upon autonomy and dignity. Both are essential
attributes of privacy which makes no distinction between the birth marks
of individuals.”
The judgment, apart from dealing with privacy, has also dealt with a
number of aspects. The judgment authored by Justice Chandrachud
rectifies the mistakes committed by the Supreme Court in the past.
Justice Chandrachud hits two masterstrokes which no one could have
expected. Firstly, the judgment authored by him, comes down heavily on
Justice Singhvi’s judgment in Suresh Kumar Koushal v. Naz
Foundation (2014), thereby upholding the spirit of LGBT rights. To
quote from the judgment:

“The test of popular acceptance does not furnish a valid basis to

disregard rights which are conferred with the sanctity of constitutional
protection. Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or way of
life does not accord with the ‘mainstream’. Yet in a democratic
constitution founded on the rule of law, their rights are as sacred as
those conferred on other citizens to protect their freedoms and liberties.
Sexual orientation is an essential attribute of privacy. Discrimination
against an individual on the basis of sexual orientation is deeply
offensive to the dignity and self-worth of the individual. Equality
demands that the sexual orientation of each individual in society must be
protected on an even platform. The right to privacy and the protection of
sexual orientation lie at the core of the fundamental rights guaranteed by
Articles 14, 15 and 21 of the constitution… [LGBT] rights are not so-
called but are real rights founded on sound constitutional doctrine. They
inhere in the right to life. They dwell in privacy and dignity. They
constitute the essence of liberty and freedom. Sexual orientation is an
essential component of identity. Equal protection demands protection of
the identity of every individual without discrimination.”
The reference of correctness of Suresh Koushal is pending before a
constitution bench. Justice Sanjay Kishan Kaul, while writing his
concurring opinion, has expressly agreed with Justice Chandrachud’s
view on Suresh Koushal, thereby making it a view of five judges. Further,
the other judges have not dissented on this aspect, which implies that
this view on Suresh Koushal will be counted as coming from a nine-
judge bench. It is now only a matter of procedure that the view of the
division bench in Suresh Koushal will be overruled.

Secondly, Justice D.Y. Chandrachud overturns his father’s (Justice Y.V.

Chandrachud’s) judgment in ADM Jabalpur v Shivakant Shukla (1976),
who had concurred with the majority in holding that citizens’
fundamental rights could be suspended during the Emergency. Perhaps,
Justice D.Y. Chandrachud becomes the first judge in history to have
overturned his father’s judgment/mistake. Further, Justice Chandrachud
and also the other judges in their concurring opinions have upheld the
dissent of Justice H.R. Khanna in ADM Jabalpur. Justice Khanna had
emphatically held that the suspension of the right to move any court for
the enforcement of the right under Article 21, upon a proclamation of
emergency, would not affect the enforcement of the basic right to life and
liberty. The constitution was not the sole repository of the right to life
and liberty. Upholding the dissent of Justice Khanna, it has been written
by Justice D.Y. Chandrachud that:

“Justice Khanna was clearly right in holding that the recognition of the
right to life and personal liberty under the constitution does not denude
the existence of that right, apart from it nor can there be a fatuous
assumption that in adopting the constitution, the people of India
surrendered the most precious aspect of the human persona, namely,
life, liberty and freedom to the state on whose mercy these rights would
depend. Such a construct is contrary to the basic foundation of the rule
of law which imposes restraints upon the powers vested in the modern
state when it deals with the liberties of the individual. The power of the
court to issue a Writ of Habeas Corpus is a precious and undeniable
feature of the rule of law… A constitutional democracy can survive when
citizens have an undiluted assurance that the rule of law will protect
their rights and liberties against any invasion by the state and that
judicial remedies would be available to ask searching questions and
expect answers when a citizen has been deprived of these, most precious
rights. The view taken by Justice Khanna must be accepted, and accepted
in reverence for the strength of its thoughts and the courage of its
convictions.”
Though the ADM Jabalpur judgment was nullified by
44th constitutional amendment, it, however, remained a blot in the face
of Supreme Court in the backdrop of gross human rights violations
during Emergency. The right to privacy judgment has washed away the
‘self-inflicted’ wound. The New Times had hailed Justice Khanna for his
dissent in following words: “If India ever finds its way back to the
freedom and democracy that were proud hallmarks of its first eighteen
years as an independent nation, someone will surely erect a monument
to Justice H.R. Khanna of the Supreme Court”. Upholding Justice
Khanna’s dissent, is the greatest tribute to him.

The right to privacy judgment is one of the most landmark judgments of

independent India. It not only learns from the past, but also sets the
wheel of liberty and freedom for future. The Supreme Court of India has
once again emerged as the sole guardian of the Indian constitution.

https://thewire.in/171325/justice-chandrachud-judgment-right-to-privacy/