Facts In Brief

• In January, 2009, Aadhar scheme was launched by the Government in order to create the world�s largest unique identification system. The Government of India, initiated a project titled �Unique Identification for BPL Families
• In November 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 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 incorporated the right to privacy to a certain extent.
• 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 to determine whether there was a fundamental right to privacy within the Constitution.
• The challenge was made before the nine-judge bench to determine whether the right to privacy was guaranteed as an independent fundamental right following conflicting decisions from other Supreme Court benches earlier.

Procedural History
The matter in hand was whether privacy is a right under article 21[1] of the Constitution. This question arose in 2015 before a three-judge bench of the Apex court considering Aadhar scheme to possess potential threat for an individual�s data is a breach of right to life and personal liberty. But it was argued that Right to privacy is not a part of Article 21 since the larger benches of the court in the cases M.P. Sharma v. Satish Chandra [2]( 8 judge bench) and Kharak Singh v. Uttar Pradesh[3](6 judge bench) had refused to accept it in the purview of Fundamental Rights. Consequently, the bench referred this matter to a five-judge to ensure �institutional integrity and judicial discipline�.

The bench suggested forming even a larger bench as an eight-judge bench has already decided on the matter and a nine-judge bench should be formed to articulate authoritatively on the status of the right to privacy.

Issues

1. Whether right to privacy is a Fundamental Right under Article 21 of Part III of the Constitution of India, 1950.
2. Whether the decision in M P Sharma v. Satish Chandra, District Magistrate, Delhi & Kharak Singh v. State of U.P is correct in law.

Held

1. 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 right to privacy was given the status of a fundamental right subjected to certain restrictions as it is not absolute.
2. No, all the judges unanimously overruled the law laid down in M.P. Sharma v. Satish Chandra and Kharak Singh v. State of U.P.

Rule ( Ratio Dcedendi)
In a historic landmark judgement by apex court the nine judges, judgement spanning 547 pages, contains six opinions and a lot of interesting observations, but the Ratio Dcedendi or the law laid down is a historic change and also shows overreach of judiciary.

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. Thus, the operative part of the judgment, i.e. the binding part, is only the order that has been signed by all nine judges, which is presented here in fourfold way:

• The eight-judge bench decision in M P Sharma (1954), which held that the right to privacy is not protected by the Constitution stands over-ruled;
• The Court�s subsequent decision in Kharak Singh (1962) also stands over-ruled to the extent that it holds that the right to privacy is not protected under the Constitution;
• The bench unanimously recognised 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 the right is not an �absolute right� and
• The body of case law that developed subsequent to Kharak Singh, recognizing the right to privacy, enunciated the correct position of law.

Critical Analysis
Law cannot remain static; it needs to update itself with changing times. Fundamental rights were once described by the Supreme Court as:
Empty vessels into which each generation must pour its content in light of its experience[4]

On the contrary it seems to spill over with a myriad right, rather like a receptacle for pretty much everything that make life worth living. The judgment of the Supreme Court in KS Puttaswamy v Union of India is an enormous leap in the direction of setting men (and women) free.

It is a resounding victory for civil liberties in India. The judgment comes from what is arguably, the most powerful court in the world, an activist court that presides over the destinies of a sixth of humankind. A bench of nine judges has finally stamped out the brooding spectre of MP Sharma and Kharak Singh.

These were two archaic judgments which the Court itself had put past itself over the last several decades when it proceeded to recognise privacy in a myriad different context from surveillance and telephone tapping, bank accounts and black money, to matrimonial relationships and dietary choices. It was held in MP Sharma that in absence of a provision like the Fourth Amendment to the US Constitution, a right to privacy couldn�t be read into the Indian Constitution.

This position is misleading and contrary in present times. The Court further reasoned that privacy is not an absolute right, like other fundamental freedoms under Part III. On page 264, Justice Chandrachud writes that a �law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. Thus, in context of Article 21, an invasion of privacy must be fulfilled on the basis of a law which stipulates a procedure which is fair, just and reasonable.� He further said that an invasion of life or personal liberty must meet the following:

1. legality, which postulates the existence of law;
2. need, defined in terms of legitimate state aim; and
3. proportionality which ensures a rational nexus between the objects and the means adapted to achieve them.

This judgement takes privacy far beyond the confines of Article 21 and weaves it into other fundamental rights such as the freedom of conscience, the freedom of assembly and the freedom of occupation. Although in the past, the Supreme Court had carved out the right to privacy from Article 21, (the Autoshankar case being the most significant of these cases), never before has the right to privacy has travelled so far outside the contours of Article 21 to touch other fundamental rights.

Privacy has been described in Puttaswamy as a �travelling right�, a necessity and a pre -condition for the exercise of other freedoms. In present times, somewhat paradoxically, privacy is a pre-requisite of free speech. The judgment in Puttaswamy recognizes the right to privacy against not just the State but private parties as well The State is now under a duty to safeguard the privacy rights of citizens not only against itself but also against non � state actors who have built empires on economic espionage.

The judgement proceeds to recognise several new facets of privacy that the Supreme Court might not have had occasion to address before. For example, the judgment recognises the right to publicity, the right of an individual to control the public portrayal of her image and to control the commercial use of her identity, image or likeness. It also recognises the right to be forgotten in the context of the digital world, the right to erase information from the public domain that has become irrelevant or stale.

The present judgment has re-shaped the ambit of fundamental rights in Indian constitutional history. The Indian judiciary has acted as a true guardian of liberty. It has given the Indian government an opportunity to re-think its data protection mechanism, both in light of individual privacy and the interests of the state.

Relevance Of Case
The Puttaswamy judgment brings out a constitutional understanding of where liberty places an individual in the context of a social order. In the forwarding of understanding of constitutional law, the present case plays an important role as it deals with the most sacrosanct part of our constitution that is Fundamental Rights here we get to learn how the judges differing in their views in judgements but the final outcome is the same and unanimously right to privacy comes under the ambit of article 21.

Also as a law student after reading the 547 page, it is clear that it will not lose its status amongst the Golden Trinity Of Article i.e. Article 14, 19 and 21. It also provides new facets to do research. Also apart from it it enriches our knowledge for better understanding the interpretative power of judiciary with changing time as the Supreme Court of India evolved itself in overruling and altering the judiciary�s jurisprudence.

COMMENTS (Personal Opinion)
As lawyer is recognized social engineers their tools, for engineering is the laws and Acts which must be changed to cater the needs of the public with changing times and this decision is on the same lines. 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�. It is a landmark judgment in the realm of traditional as well as digital privacy. The opinions though diverse in nature led to the same conclusion i.e. overruling all the previous judgments and recognizing privacy as a fundamental right. The case expands freedom of expression by recognizing privacy as an independently enforceable right, as opposed to a right that is available only as far as it impacts constitutionally guaranteed freedoms.

This provides for the protection of freedom of expression by recognizing rights such as the right against arbitrary, unregulated State surveillance, the right to express one�s sexual orientation, religious expression and data protection. The Court considered detailed arguments on the nature of fundamental rights, its constitutional interpretation, the theoretical and philosophical bases of privacy and other minute aspects before giving it the status of a fundamental right. The fact that privacy is intact even when a person is in the public sphere truly justifies the nature of our democracy.

A striking feature of this joint judgment is the detailed treatment of issues of digital privacy which are of increasing importance, both in India as well as internationally. Also, the judgment makes it clear that the Indian Government is now concerned to establish an online data protection regime to protect the privacy of the individual which is great as India is lagging behind in online data privacy regime i.e. proper laws and regulations regarding collection, preservation, and compliance of personal data and related enforcement mechanisms.

The decision was given by a historic nine-judge bench of the Supreme Court. Therefore, it establishes a binding precedent on all Courts, unless overruled by a larger bench. It is also of wider significance because, by putting the right to privacy at the heart of the constitutional debate in the world�s largest democracy, it is likely to provide assistance and inspiration for privacy campaigners around the world. In just a short span of two years the decision was also citied and a pathway for one of the most audacious and the revolutionary decision by the Indian judiciary the decriminalisation of homosexuality in case of Navtej Singh Johar v. Union of India[5] , and in other cases also.

A striking feature of the joint judgment is the detailed treatment of issues of digital privacy which are of increasing importance both in India and internationally. The judgment, while deciding the contours of privacy, very interestingly refers to the fundamental notions of privacy depicted in an article on �Typology of Privacy�. The diagram below, sourced from the judgment, gives a lucid categorization of privacy rights.[6]

As explained in the judgment, informational privacy reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information. The Court thus recognized information privacy as a facet of the right to privacy and recommended that The government of India should examine and put in place a robust mechanism for data protection. This exercise is quite tricky because it would require a fair balance between the rights of citizens and the state.

Conclusion
The six separate and concurring judgments in Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors are trailblazing for their commitment to privacy as a fundamental freedom and for the judges� use of foreign law across jurisdictions and spanning centuries. The decision by the apex court on the vital issue about privacy now open the flood gates for the different matter to be filed under the name of this facet as it is not explicitly mentioned in the constitution but the court held it as a fundamental right by reading between the lines in Article 21 as earlier also many other rights were covered under the ambit of this Article.

With the recognition of privacy as a basic and fundamental right of an individual, India definitely cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing information technology, privacy needs to be a fundamental right. The judgment is clear: privacy and human dignity are intrinsically linked. Privacy is new born right of today�s era. Due to fast technological developments in the world, data protection is the foremost duty of the government.

Further, thecase is likely to be of wider significance as privacy campaigners use it to pursue the constitutional debate over privacy in other countries. The present case widens the purview of freedom of expression by advocating privacy as a natural right, as any opposition to this would infringe the fundamental right of an individual which is backed by constitutional sanctions.

This will expand the scope of privacy regarding state surveillance, religious expression and data protection. s this decision was given by a historic nine-judge bench of the Apex court[7]Therefore, it established a binding precedent on all courts, unless overruled by a larger bench. The real test of privacy will lie in how subsequent Courts apply the Puttaswamy decision to determine these varied questions.

End-Notes:

1. No person shall be deprived of his life or personal liberty except according to procedure established by law
2. 1954 A.I.R. 300
3. A.I.R. 1295
4. PUCL v Union of India (2003) 4 SCC 399
5. AIR 2018 SC 4321
6. http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf
7. Article 141, Constitution of India, 1950.