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Analysis Of Supreme Court's Privacy Verdict

Privacy is fundamental to human being and there are various aspects of privacy such as privacy of space, privacy of body, privacy of information, privacy of choice which has been evolved over time. And in today's digital era there is greater need to protect this right. The Constitution of India does not specifically guarantee a right to privacy, however through various judgments over the years the Courts of the country have interpreted the other rights in the Constitution to be giving rise to a limited right to privacy - primarily through Article 21 - the right to life and liberty.

Until the year 2017, privacy was not given the status of fundamental right as the Constitution does not explicitly guarantee it and because of the conflicting opinions of the courts. The right to privacy is now an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India after (Retd) Justice K.S. Puttaswamy and Anr. v Union of India and Ors. This case is Popularly known as the Aadhaar Case. In this paper the author tries to analyse the Hon'ble Supreme Court's privacy judgment which was delivered on August 24, 2017.

Details Of The Case
  • Citation: Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
  • Case Type: Civil Writ Petition
  • Decided on: August 24, 2017
  • Case Holding: The right to Privacy is protected under Articles 14, 19 and 21 of the Constitution of India
  • The privacy verdict is given by the bench of 9 judges­ — J.S. Khehar, J. Chelameswar, S.A. Bobde, R.K. Agrawal, R.F. Nariman, A.M. Sapre, Dr. D.Y. Chandrachud, S.K. Kaul and S.A. Nazeer.

Introduction
On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors.[1] passed a historic judgment affirming the constitutional right to privacy. It declared privacy to be an integral part Article 21 of Part III of the Constitution of India. The case began with the question of whether the right to privacy was a fundamental right, which was raised in 2015 in the arguments concerning the legal validity of the Aadhaar database before a three Judge Bench.

The State argued that the existence of the right to privacy as a fundamental right was in doubt in view of the two decisions in the cases of M.P. Sharma v Satish Chandra, District Magistrate, Delhi[2], rendered by an eight Judge Bench, and Kharak Singh v State of Uttar Pradesh[3], rendered by a six Judge Bench. At the same time, several subsequent judgments over the years had recognised the right to privacy as a fundamental right. However, these subsequent decisions that affirmed the existence of the right to privacy were rendered by benches of a smaller strength than M.P. Sharma and Kharak Singh.

Due to issues relating to the precedential value of judgments and noting the far-reaching importance of the right to privacy, this case was referred to a nine Judge Bench of the Supreme Court. The Bench unanimously held that "the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21[4] and as a part of the freedoms guaranteed by Part III of the Constitution". In doing so, it overruled previous judgments of the Supreme Court in M.P. Sharma and Kharak Singh.

Background Of The Case
Aadhaar is the national identity project introduced by the Government of India in 2011 and a new agency, UIDAI was also established. Under this scheme, biometric data such as finger print, retina scan and facial scan of Indian residents are collected and a unique identification number will be provided to them. These data were stored in a central server. The object of this scheme was to make public services efficient and to curb corruption.

The Government made Aadhaar mandatory to avail several welfare schemes such as public distribution system, mid-day meal scheme etc. A petition was filed by Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court which sought to challenge the constitutional validity of the Aadhaar card scheme. He challenged the Aadhaar Programme for infringing upon rights guaranteed by the Constitution.

He contended that Aadhaar violates the right to privacy. He expressed concern over (i) the ability of private entities to request Aadhaar authentication and (ii) the lack of checks on the power of the government to use the biometric data collected. He argued that entitlements granted to individuals by the State's social sector schemes are themselves a fundamental right and cannot be restricted by the Aadhaar ID.

Over time, other petitions challenging different aspects of Aadhaar were also referred to the Supreme Court. After filing this writ petition, a series of orders were passed. The Aadhaar Act was passed in 2016. In course of time the government makes mandatory linking to Aadhaar to pan mobile number, admission to school and even filing of IT returns by amending PMLA and IT Act. The petitioners then filed another writ petition challenging the vires of the Act. This writ petition was then merged with the previous one and was treated as one writ petition. During the span of 2012 to 2018 nearly 11 petitions were filed regarding the issue of Aadhaar.

Facts Of The Case
The petition filed by Justice Puttaswamy was a case which sought to challenge the constitutional validity of the Aadhaar card scheme. In 2015, before a three Judge Bench of the Court, the norms for, and compilation of, demographic biometric data by the government were questioned on the grounds of violation of the right to privacy. The Attorney General of India argued against the existence of the fundamental right to privacy based on the judgments in M.P. Sharma and Kharak Singh.

The Two Cases That Casted Doubt

  • M.P. Sharma v Satish Chandra, District Magistrate, Delhi[5], rendered by an eight Judge Bench. In writ petitions before the Supreme Court, the Constitutional validity of the searches was challenged on the grounds that they violated their fundamental rights under Article 19(1) (f) and 20 (3) - protection against self-incrimination. The eight - bench judge of the Supreme Court held that the drafters of the Constitution did not intent to subject the power of search and seizure to a fundamental right of privacy.
     
  • Kharak Singh v State of Uttar Pradesh[6], rendered by a six Judge Bench. After nine years, in Kharak Singh v. State of Uttar Pradesh majority of the Judges participating in the decision again rejected the right to privacy held that, "our Constitution does not in terms confer any like constitutional guarantee". But minority opinion of Justice Subba Rao in Kharak Singh case was in favour of privacy. He held "It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty." The right to privacy was invoked in this case to challenge the surveillance of an accused person by the police.

Thus, it is clear that before 1975, the right to privacy is not expressly recognized by the larger benches of the Supreme Court. Over the next 40 years, the interpretation and scope of privacy as a right expanded, and was accepted by smaller benches of the Supreme Court as being constitutional in subsequent judgments. While addressing these challenges in the instant case, the three Judge Bench took note of several decisions of the Supreme Court in which the right to privacy had been held to be a constitutionally protected fundamental right.

Privacy As A Fundamental Right - Decisions Of Smaller Benches

  • In Gobind v State of Madhya Pradesh[7], three judge Bench upheld the existence of a fundamental right to privacy for the first time. The right was not absolute and could be interfered with by a procedure established by law
  • Maneka Gandhi v Union of India[8]
  • Unni Krishnan J.P and Ors. v State of Andhra Pradesh And Ors.[9]
  • R. Rajagopal v State of Tamil Nadu[10]
  • Peoples Union for Civil Liberties v Union of India[11] (Telephone Tapping Case)

However, these subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by benches of a strength smaller than those in M.P. Sharma and Kharak Singh. Consequently, this bench referred the matter to a five-judge Constitution bench to ensure "institutional integrity and judicial discipline". On 18 July 2017, a Constitution Bench considered it appropriate that the issue be resolved by a bench of nine judges.

The bench was set up not to not look into the constitutional validity of Aadhaar, but to consider a much larger question: whether right to privacy is a fundamental right and can be traced in the rights to life and personal liberty? A Nine - Judge Bench of the Supreme Court delivered a unanimous verdict in Justice K.S. Puttaswamy vs. Union of India and others, affirming that the Constitution of India guarantees to each individual a fundamental right to privacy. Although unanimous, the verdict saw six separate concurring decisions. Justice Chandrachud authored the decision speaking for himself, Justices Khehar and R.K. Agarwal and Abdul Nazeer.

The remaining 5 judges each wrote individual concurring judgments. This Bench did not decide the fate of Aadhaar but only the nature and status of right to privacy under the Constitution. It does not comment on whether the government's demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. The Bench asserted that such decision will be taken by smaller bench of the Supreme Court ie. 5 Judge Bench.

Issues Involved
  • Whether the Aadhaar Project has a propensity to create a surveillance state and is thus unconstitutional based on this ground
  • Whether the Aadhaar Project violates the right to privacy of the citizens and is unconstitutional based on this ground?
  • Whether Section 7 and 8 of the Aadhaar Act also includes children?
  • Whether the Aadhaar Act can be treated as a 'Money Bill' within the meaning of Article 110 of the Indian Constitution?
  • Whether Section 139AA of the Income Tax Act, 1961 violates the right to privacy of the citizens under the Indian Constitution?
  • Whether Rule 9(a) of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
  • Whether Circular dated March 23, 2017, issued by the Department of Telecommunications which mandates the linking of the mobile number of the citizens with Aadhaar is illegal and unconstitutional?
  • Whether certain actions which were taken by the respondents are in contravention of the interim orders passed by the Court?
  • Whether the following provisions and Regulations of the Aadhaar Act are unconstitutional:
    • Sections 2(c) and 2(d) read with Section 32;
    • Sections 2(c) and 2(d) read with Section 32;
    • Section 2(h) read with Section 10 of the Act- Central Identities Data Repository (CIDR);
    • Section 2(v), Section 3, Section 5, Section 6, Section 8, Section 9;
    • Sections 11 to 23;
    • Sections 23 and 54;
    • Section 23(2)(g) read with Chapter VI & VII;
    • Section 29, Section 33, Section 47, Section 48, Section 57, Section 59

Issue Regarding Privacy

Whether the Right to Privacy was a fundamental right under Part III of the Constitution of India?

Reading The Puttaswamy Judgment

The judgment dated August 24, 2017, spanning 547 pages, contains six opinions and a lot of interesting observations. At the outset, however, it is important to note that only the majority opinion in a judgment is binding on future cases. In this case, Chandrachud J. wrote the plurality opinion, on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions.

Thus, while Justice Chandrachud's opinion is the "plurality" opinion, it does not constitute the majority, since it has not been signed by a total of five or more judges. Similarly, the concurring opinions too, are not binding and do not constitute 'precedent' for future cases.

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 holds:
  1. 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
  2. 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;
  3. The 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
  4. The body of case law that developed subsequent to Kharak Singh, recognizing the right to privacy, enunciated the correct position of law.

Multiple Views On Privacy

Writing the plurality opinion, Chandrachud J., holds that the right to privacy is not independent of the other freedoms guaranteed by Part III of the Constitution. It is an element of human dignity and is an inalienable natural right. He focuses on the informational aspect of privacy, its connection with human dignity and autonomy, and rejects the argument that privacy is an elitist construct.

During the course of his opinion, Chandrachud J. makes several observations about privacy in the digital economy, dangers of data mining, positive obligations on the State, and the need for a data protection law. He also raises an important point about the negative and positive elements of privacy. The former restricts the State from unfairly interfering in the privacy of individuals, while the latter obliges it to put in place a legislative framework to restrict others from doing so.

Chelameswar J. on the other hand, grounds the right to privacy, as comprising of three facets, namely repose (freedom from unwarranted stimuli), sanctuary (protection from intrusive observation) and intimate decision (autonomy to make personal life decisions).

Nariman J. too endorses Gary Bostwick's conceptual understanding of privacy as encompassing "repose, sanctuary, and intimate decision". He gives further content to the right by classifying it into three categories: (1) that which involves invasion by the State into a person's physical body, (2) information privacy which captures unauthorised uses of personal information, and (3) privacy of choice, or "individual autonomy over fundamental personal choices".

For Bobde J., fundamental rights have two aspects - first, to restrict legislative powers and second, to provide the conditions for the development and dignity of individuals. Thus, similar to Chandrachud J., he recognizes both the positive and negative aspects of enforcing fundamental rights, although he is clear that fundamental rights claims (as opposed to other laws) fall squarely on the State.

Kaul J., on the other hand, recognizes the claims of privacy against the State and non-State actors. In respect of the State, he identifies concerns of surveillance and profiling, whereas, in respect of non-State actors, he emphasizes on the impact of technology, in the form of pervasive data generation, collection, and use in a digital economy. Kaul J. also elaborates on the influence of big data, in particular, its impact on the actions of an individual and the resultant chilling effect it may have on free speech and expression. He thus observes the need to protect certain information from both the State as well as private actors.

Finally, Sapre J. focuses his opinion on the importance of the Preamble to the Constitution, and the principles of liberty, dignity, and fraternity enshrined therein.

Tests For Infringement Of Privacy

It is held that the fundamental right to privacy is not absolute and will always be subject to reasonable restrictions. The Supreme Court accepted that privacy forms an integral part of "personal liberty" under Article 21 of the Constitution, which cannot be denied except through a "procedure established by law".

The Supreme Court has clarified this to mean that the procedure prescribed by law must necessarily be "just, fair and reasonable". The State can impose restrictions on the right to privacy to protect legitimate State interests but it can only do so by following the three-pronged test summarized below:
  • Existence of a law that justifies an encroachment on privacy
  • A legitimate State aim or need that ensures that the nature or the content of this law falls within the zone of reasonableness and operates to guard against arbitrary State action; and
  • The means adopted by the State are proportional to the objects and needs sought to be fulfilled by the law.

Fate Of Aadhaar

On 17th January 2018, the hearing of Aadhaar Case was started in Supreme Court. Constitutionality of Aadhaar Act was decided by a Five Judge Bench on 26th September 2018. Bench consists of Justice D. Misra, Justice D.Y. Chandrachud, Justice A Bhushan, Justice AM Khanwilkar and Justice A Sikri. A 4:1 majority upheld the Aadhaar Act as constitutional but struck down certain provisions.

It held that the Act does not create a surveillance State and, further, that it has the potential to empower the marginalized by facilitating the disbursal of State subsidies and benefits. The Supreme Court held Aadhaar card to be valid but struck down certain provisions such as mandatory linking of Aadhaar with mobile number and bank accounts and making Aadhaar mandatory for school admissions and competitive exams.

It struck certain sections such as allowing of data sharing on the ground of national security. Sikri J authored the majority opinion on behalf of now ret'd Misra CJI, Khanwilkar J and himself. Bhushan J concurred and Chandrachud J dissented.

My Comment
The question of whether right to privacy is a fundamental right first raised in the year 1955. The court took more than 60 yrs to decide that right to privacy is a fundamental right. The Court's broad interpretation of the right to privacy has paved the way for a wide range of claims. While the exact boundaries of the right will continue to develop on a case by case basis, it is clear that privacy claims will often have to be weighed against other competing interests.

In the absence of a defined hierarchy among the various rights guaranteed under Part III of the Constitution, the decision in each case will vary based on facts at hand and the judicial interpretation. In fact, a PIL was filed before the Delhi High Court that the restitution of conjugal rights provision in the Hindu Marriage Act and Special Marriage Act is violative of the right to privacy. The real test of privacy will lie in how subsequent Courts apply the Puttaswamy decision to determine these varied questions.

Conclusion
Right to privacy is now a fundamental right envisaged under Article 21 of the Constitution of India. It protects an individual from the scrutiny of the State in their home, of their movements and over their reproductive choices, choice of partners, food habits, etc. Therefore, any action by the State that results in an infringement of the right to privacy is subject to judicial review.

The judgment in Puttaswamy's case also calls for the Government to create a data protection regime to protect the privacy of the individual. By expressly recognising an individual's right to privacy regarding his sexual choices, the judgement had an impact on the decriminalisation of homosexuality and decriminalization of Adultery in India. To the extent that the judgment has stated that the State cannot interfere in the food choices of an individual it had an impact on the various cases protesting the ban on beef imposed by certain States.

Reference
  1. Constitution of India, 1950
  2. Indian Penal Code, 1860
  3. Universal Declaration of Human Rights, 1948
  4. The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016
  5. Justice K.S.Puttaswamy (Retd) vs Union Of India And Ors. on 24 August, 2017
  6. Justice K.S.Puttaswamy (Retd) vs Union Of India on 26 September, 2018
  7. Alok Prasanna Kumar, The Puttaswamy Judgment Exploring Privacy Within and Without, LII EPW 34 (2017).
  8. Anurag Bhaskar, Key Highlights of Justice Chandrachud's Judgment in the Right to Privacy Case, THE WIRE (Jan. 10, 2022, 9.00 PM) https://thewire.in/law/justice-chandrachud-judgment-right-to-privacy
  9. Bhandari, V., et al. An Analysis of Puttaswamy: The Supreme Court's Privacy Verdict. 11 IndraStra Global 1 (2017).
  10. Menaka Guruswamy, Justice K.S. Puttaswamy (Ret'd) and Anr v. Union of India and Ors, Writ Petition (Civil) No. 494 of 2012, 111 The American Journal of International Law 994 (2017).
  11. Ritansha Lakshmi, Case Summary: Justice K.S puttaswamy (Retd.) vs. Union of India, 2017, LAWLEX.ORG (Jan. 10, 2022, 9.30 PM) https://lawlex.org/lex-bulletin/case-summary-k-s-puttaswamy-retd-v-s-union-of-india-2017/18929
  12. Sahaj Karan Singh, Case Comments: Aadhaar Card Verdict by Supreme Court K.S. Puttuswami V. Union of India - (2017) 10 SCC 1, 6 PENACCLAIMS 1 (2019).
  13. Shefalika Narain, Aftermath of the Puttaswamy Judgement: Reproductive Rights in India, 9 Vivekananda Journal of Research 1 (2020).
  14. Vrinda Bhandari and Renuka Sane, Protecting Citizens from the State Post Puttaswamy: Analysing the Privacy Implications of the Justice Srikrishna Committee Report and The Data Protection Bill, 2018, Published in Articles section of www.manupatra.com.
End-Notes:
  1. Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors. (2017) 10 SCC 1; AIR 2017 SC 4161
  2. M.P. Sharma v Satish Chandra, District Magistrate, Delhi (1954) SCR 1077.
  3. Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332.
  4. Article 21 states that No person shall be deprived of his life or personal liberty except according to a procedure established by law.
  5. M.P. Sharma v Satish Chandra, District Magistrate, Delhi, (1954) SCR 1077.
  6. Kharak Singh v State of Uttar Pradesh[6], (1964) 1 SCR 332.
  7. Gobind v State of Madhya Pradesh, AIR 1975 SC 1378.
  8. Maneka Gandhi v Union of India, AIR 1978 SC 597.
  9. Unni Krishnan J.P and Ors. v State of Andhra Pradesh And Ors., 1993 AIR 2178.
  10. R. Rajagopal v State of Tamil Nadu, 1995 AIR 264.
  11. Peoples Union for Civil Liberties v Union of India, AIR 1997 SC 568.

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