In 2017 a nine-judge bench of India's Apex Court unanimously held that the
Right to Privacy is a Fundamental Right under the Constitution. The right was
placed under Article 21 particularly and Part III of the Constitution. Many
previous cases of the Supreme Court, such as MP Sharma, Kharak Singh and ADM
Jabalpur, were overruled, and this judgement became precedent for upcoming
landmark judgements such as Navtej Singh Johar.
This article aims to see the Right to Privacy in a post-Puttaswamy era, and the
same High Court cases from 2019 have been selected, discussed and analysed. The
judgments in this survey touch on various aspects of privacy such as data
protection, autonomy, dignity, freedom of choice, surveillance, search &
seizure, informational privacy and phone tapping.
The critical issue in each case has been identified and then an analysis of the
judgement is made in light of the KS Puttaswamy judgement. An effort has been
made to understand how Privacy is being understood and dealt with by our High
Courts with the help of these selected cases.
Raju Sebastian & Ors. v. Union of India & Ors. (Kerela High Court)Crux
Raju Sebastian v. UOI
deals with Informational Privacy. In this case,
the Division Bench of the Kerela High Court held that demand asking for bank
statements and income tax details would violate the Right to Privacy as such
demand fails the test laid down in KS Puttaswamy.
The Appellants have licensed petrol retailers. The Respondents of the case were
Oil Corporations including Bharat Petroleum Corporation Limited, Hindustan
Petroleum Corporation Limited and Indian Oil Corporation Limited. There were
dealership agreements between the parties under which the Appellants had issued
circulars asking the retailers to submit their bank statements, income tax
returns and sales tax returns.
Appellants argued that demanding such information violated the Right to Privacy
as the information was private and personal information. The companies, on the
other hand, contended that as per the agreement, they had the rights to demand
the information to ensure that no benami transactions were being made and they
also argued that their demands were not against the Right to Privacy as the
information they required was pertaining only to their dealership. The Single
Judge Bench of the High Court ruled in favour of the Respondents and found no
violation of privacy. The appellants then went to appeal against the judgement.
Analysis of the judgement
- Is the demand for bank account statement, income tax returns and sales
return violative of the Right to Privacy?
The Court first concluded that the relationship between the bank and the account
holder is fiduciary. The details in a bank statement of a person and private and
personal. Income tax returns and sales tax returns are also private. Any action
to disclose such information would be a breach of privacy. The court did not
accept the respondent's argument about the demand being made just in relevance
to the information about the dealership.
The Court then applied the three fold test laid down in the Puttaswamy case
It is well settled in the leading judgement that "no person can be deprived of
his life or personal liberty except in accordance with the procedure established
by law". The Right to Privacy does have limitations but those limitations have
to be reasonable and under the first test, the legality of limiting the right
must be proved. The Court found no law that could justify the respondent's
The Court also took cognizance that the respondents have not relied on any
statutory basis for making the demands that they did. It was held that the
Corporations' demand did not have a legal justification and their reliance on a
contract with the appellants cannot be a sufficient basis to be an exception to
the Fundamental Right to Privacy. It was observed that a contract cannot be used
to infringe upon an Individuals rights as the contract is not a law.
The Court held that the first test laid down in Puttaswamy had failed, so there
was no need to look into the two further tests. Thus, by applying the test laid
down in Puttaswamy, it was found that there was a violation of privacy.
Filling the gaps
Though the Court was right in identifying how the test must be applied and the
first legality test failed, the Kerela High Court failed to apply the test
thoroughly as was envisioned by the author of the three fold test. In his
judgement, Justice Chandrachud used "and" and not "or" for the three tests,
which would suggest that all the three folds must be enquired into.
An invasion of life or personal liberty must meet the three-fold requirement of:
- legality, which postulates the existence of law.
- need, defined in terms of a legitimate state aim; and
- proportionality which ensures a rational nexus between the objects and
the means adopted to achieve them
The Kerela High Court only applied the first test and did not find it necessary
to look into the following two tests which to some extent means that though the
judgement is a correct judgement nevertheless is incomplete.
Cochin Institute of Science and Technology v. Jisin Jijo (Kerela High Court)
Cochin Institute case deals with Autonomy as an aspect of Privacy. In this
case a Division Bench of the Kerela High Court held that the freedom to choose
educational institutes is a facet of Right to Privacy.
The Appellant in this case is an engineering college affiliated under APJ Abdul
Kalam Technological University. Students from the college wanted to transfer to
other colleges under the same University. The students contended that they
wanted to seek transfer due to the lack of amenities and infrastructure and
because many college teachers had joined new colleges after resigning from the
The college authorities denied the students transfer and
denied to issue NOCs. A single judge bench of the High Court ruled in favour of
the students and held that the college cannot compel them not to transfer. The
Appellant then challenged the court's judgement in this appeal.
Analysis of the Judgement
- Can the right of the students to choose their educational institution be
The High Court did not acknowledge the procedural requirements set for a student
to seek transfer, however the procedure cannot be a statutory legal basis from
restricting transfer of students. The norms which the college was relying upon
were found to be non-statutory. The Court did not find any legitimate legal
authority or basis under which the Institute can deny the students transfer to
the colleges they desire.
The court in this case opined that right to choose college is an aspect of Right
to Privacy under Article 21. In spirit of the Puttaswamy judgement the Court
chose to see the right of a student to choose their institution as a "Right of a
person to individual
". The High court highlighted personal choice and preferences of an
individual as being integral to the Fundamental Right under Article 21.
The Court in this decision upheld Justice RF Nariman's judgement in which he
enlisted privacy of choice as one of the three aspects of Right to Privacy in
the Indian context.
This judgement was a short order of only four pages yet it is a progressive
judgement which showcases the wide scope of Right to Privacy. In layman's
understanding Privacy might just come across as a word that simply means non
disturbance. However our Courts have interpreted and elaborated the term as a
gate of freedom which only opens up further doors to a multiverse of individual
freedoms. This judgement not only applied the test of the landmark 2017
judgement but also depicted how right to privacy can be applied in multiple
aspects and is not a right which can be limited easily.
X v. State of Uttarakhand (Uttarakhand High Court)
This case of X v State of Uttarakhand deals with bodily integrity and
dignity. This case affirmed the intersectionality with which our Fundamental
Rights are to be read. This case portrayed how Right to Privacy can be located
at the intersection of Article 15 and Article 21.
The petitioner is a transwoman who underwent Gender Reassignment Surgery(GRS)
and thereafter identified as a woman. The petitioner was raped and wanted to
file an FIR under Section 376 of the IPC. However the Police chose to file
the chargesheet under Section 377 because Section 376 is available only for
women and it was denied that the petitioner is a woman.
The petitioner presented
certificates from her doctor indicating that after her GRS she was now a female.
The State however argued that the declaration of gender should come from a
competent authority. The Petitioner then approached the High Court in a petition
to be treated as a woman.
Analysis of Judgement
This pre-dominantly dealt with the NALSA case, and the High Court went to
lengths to discuss the concept of sex, gender, psyche, biological tests,
psychological tests and Queer Rights.
For the purpose of this particular project
paragraph 16 of the Judgement becomes relevant. In the relevant paragraph the
Court cited Justice AK Sikri's reference to the NALSA case as follows:
Not only this, the judgment in NALSA's case has been upheld by the Hon'ble
Supreme Court in another landmark judgment, of right to privacy, in the case of
K.S.Puttaswamy (supra). In paragraph 96 of the judgment, it was observed as
96. NALSA indicates the rationale for grounding a right to privacy in protecting gender identity within Article 15. The intersection of Article 15 with
Article 21 locates a constitutional right to privacy as an expression of individual
autonomy, dignity and identity.
NALSA indicates that the right to privacy does not
necessarily have to fall within the ambit of any one provision in the chapter on
fundamental rights. Intersecting rights recognise the right to privacy.
primarily, it is in the guarantee of life and personal liberty under Article 21 that a
constitutional right to privacy dwells, it is enriched by the values incorporated in
other rights which are enumerated in Part III of the Constitution.
Footprints of Past leading to a Progressive future
The foundation of this intersectionality lies in the great dissents that were
cited in the Puttaswamy Judgement. Justice Fazal Ali dissented in the AK Gopalan
and was of the opinion that fundamental rights are not isolated but
have a common goal of protecting life and liberty. In this great dissent, the
idea of not limiting ourselves to a narrow textual reading of the Constitution
but actually seeing the constitution as a living breathing document whose organs
interact and intersect with each other was founded. The dissent of course later
became the correct law in Maneka Gandhi case
The Uttarakhand High Court has referred to the same intersectionality and
inter-constitutionality that Justice Fazal Ali, Justice Subba Rao and Justice HR
Khanna had envisioned in their 'three great dissents' in their respective
judgements in the AK Gopalan case, Kharak Singh Case and the ADM Jabalpur
The Uttarakhand High Court has subtly observed how even though Article 15 and
Article 21 respectively talk about to Right to Equality and Right to Freedom
respectively which might appear as two separate and isolated rights. However,
the Right to Privacy is such that it is not just found in Article 21 but also at
the junctures where dignity and identity of an individual are so intertwined
with gender that even being acknowledges as a woman becomes a matter of right to
life and liberty.
The petitioner in this case was not just fighting a case
against the heinous crime of rape but also another crime in which she was being
denied her right to herself and her gender identity which was so intrinsic to
her right to life. This view taken in this judgement is a perfect example of why
the 9-judge bench in Puttaswamy was reluctant to concretely put Right to Privacy
under one particular Section and instead chose to lay emphasis on how cases of
privacy would and should be decided on a case-to-case basis.
Vinit Kumar v. Central Bureau of Investigation (Bombay High Court)Crux
This case of Vinit Kumar deals with surveillance, data protection, search
and seizure and phone tapping aspects of Right to Privacy. In this case the
proposition that illegal phone tapping is violative of privacy was accepted. The
case majorly relied on the 1997 landmark PUCL judgement which was also
upheld in the Puttaswamy case. This case is not only important for the aspects
as mentioned earlier of Privacy but also is an important case from the
perspective of limiting State action, penetration and intervention in the lives
The petitioner was accused of bribing bank employees. The CBI relied on
telephonic conversations of the petitioner to prove the case against the
petitioner. The petitioner argued that the orders directing the interception of
his telephonic conversations was violative of privacy, ultra vires to the IT Act
and against the holdings of the PUCL case. The petitioner then approached the
High Court of Bombay in a writ petition to quash the orders directing
intercepting of phone calls.
Analysis of Judgement
- Is illegal tapping of phone calls violative of Right to Privacy?
- Can the interception of phone calls by the CBI be an exception to Right to
The impugned orders for tapping in this case were given based on 'public
safety'. It has been held earlier in the PUCL case which was later upheld by the
Puttaswamy case that phone tapping is a violation of Right to Privacy and an
order for interception can only be issued under Section 5(2) of the IT Act
in situation of public safety or public emergency.
The High Court in this
case held that the CBI could not justify resorting to the phone tapping in the
interest of 'public safety'. The CBI failed the test laid down in PUCL case.
The Court then went into the 'Test of Proportionality and Legitimacy' as was
penned by Justice SK Kaul in his concurring judgement.
Test: Principle of Proportionality and Legitimacy
490. The concerns expressed on behalf of the Petitioners arising from the
possibility of the State infringing the right to privacy can be met by the test
suggested for limiting the discretion of the State:
- The action must be sanctioned by law;
- The proposed action must be necessary in a democratic society for a
- The extent of such interference must be proportionate to the need
for such interference;
- There must be procedural guarantees against abuse of such
It was observed that the directions laid down in PUCL case were in consonance
with the aforementioned test and it was held that the CBI's impugned order did
not satisfy the test either.
Violation and Accountability
The major outcome and takeaway of this case in the author's opinion is that by
this case the Bombay High Court has sent a message to the world that Privacy is
not something which is to be taken lightly. A high authority such as the CBI
cannot just violate an individual's Right to Privacy in the name of 'public
The Right to Privacy might be a Right with limitations but to fall
under an exception to violation the tests laid down must be satisfied. Only in
exceptional situations can a person's privacy be forsaken and the Courts will
ensure that the Right is not violated as per the whims and fancies of the
State of Kerela & Ors. v. Shyam Balkrishnan & Ors. (Kerela High Court)
This case of Shyam Balkrishna  deals with surveillance, search and seizure
and bodily integrity aspect of privacy. The Kerela High Court held that the
police action of searching an individual's residence without following procedure
would amount to violation of privacy.
The petitioner was arrested by the police because of suspicion of being a
militant Maoist. The petitioner was stripped in the police station and his house
was also searched by the police. There was no material evidence of being
involved in any illegal activity. A single judge bench in a previous decision
had ordered the State to pay damages to the petitioner. The State then went in
appeal against that judgement.
Analysis of Judgement
- Were the actions of the Police Authority violative of Right to Privacy of the
The Court held that the actions of the police in searching the residence of the
petitioner without following the CrPC was unjustified. The Court also goes
on to observe that even if the police's action was ultimately aimed at achieving
a good end. Still, such illegal means cannot justify an action when Fundamental
Rights are being compromised.
So the Court has made a strong observation about
how the State cannot just walk over Fundamental Rights by pointing out to a
larger aim which its action is intended towards. The Court clarified its
position that if an accusation is made on the state for violating a fundamental
right then the Court will scrutinise whether the action was strictly required or
The Court in this case looked into proportionality because they did agree that
the aim of battling maoist militancy in the area was a legitimate goal that the
police had but the Court hold that there has to be a balance and proportionality
and the State cannot simply infringe Right to Privacy in the name of maintaining
peace and order. Perhaps if the Police had chosen a less regressive approach
with the petitioner the court could have accepted the less intrusive and more
Shashimani Mishra & Ors. v. State of Madhya Pradesh & Ors. (Madhya Pradesh High
The case of Shashimani Mishra deals with autonomy and dignity aspects of
Privacy. The High Court by its judgement held that the State cannot intervene
and intrude an individual's right to privacy whose act is not illegal.
There was a news report that an IPS officer had kept the dead body of his
father(Kulamani Mishra) in his residence. Owing to the news report the State
Human Rights Commission had passed an order which directed the Police to enter
the residence and determine whether the corpse was kept or not. The Petitioners
aggrieved by the order filed a petition seeking the setting aside of the order.
The Respondents argued that they had a medical certificate from a Hospital which
declared Kulamani Mishra to be dead. Whereas the petitioner's case is that
Kulamani Mishra is not dead and is undergoing Ayurvedic treatment. The
petitioners argue that the State cannot infringe with their right to privacy by
entering their house on basis of a newspaper report.
Analysis of Judgement
- The High Court was to decide whether the State is violating the petitioner's
right to privacy.
Quiet interestingly the High Court chose to decide this case from the standpoint
of the respondent and presumed that the person in question has in fact died.
After the presumption of death the question which the court chose to look at was
whether keeping a dead body an illegal/unlawful act. The Court went on to great
lengths and discussed the concepts of lawfulness, morality and societal norms.
The Court basically went out of its way to discuss how even if the petitioner is
keeping a dead body it cannot be an unlawful act because in a democracy
individuals are allowed to act outside societal norms. The court accepted the
act of keeping a dead body as revolting but did not consider it to be illegal.
The Court then held that since it does see any unlawfulness on part of the
petitioners so the State does not have grounds to enter the petitioner's
residence and invade their privacy.
Taking one step forward only to take two steps backwards
It is absolutely correct that State cannot enter the houses of individuals and
intrude with their privacy. The view taken by the High Court regarding a need
for an illegal act to violate privacy is also an accepted position. However the
Court in this case chose to form its judgement on an assumption of a person's
death. The death of the individual was a disputed fact and the petitioner's case
was that the person was not dead.
But the court chose to go beyond the facts in
front of itself and gave a judgement on the basis of morality and societal norms
which in the author's opinion was never the fact in issue. The court should have
established rather than assumed if the person was in fact dead(they do not do so
in the judgement) and then went on to apply the test laid down in Puttaswamy to
see if the order of the state was violative of right to privacy.
It seems to the
author as if the court in this case did read a plethora of texts on morality and
sociology but did not read into Right to Privacy and the principles laid down in Puttaswamy otherwise the approach taken by the court would have been a lot
R Annal v. State of Tamil Nadu (Madras High Court)
This case of R Annal v State of T.N
. deals with Informational Privacy, Data
Protection and Surveillance. The Madras High Court in this case gave a judgement
that enforced a teacher to either get AADHAR or quit the job.
Analysis of Judgement
- Is mandatory AADHAR enabled biometric attendance violative of Right to Privacy?
The Single Judge Bench of the Madras High Court in its judgement has talked
about a lot in detail except for the issue under which the petitioner approached
the Court. The Court in its judgement has turned a blind eye to the arguments
made by the petitioner and the precedent and principles laid down in Puttaswamy
The Court opines that Puttaswamy cannot apply in this case because the
petitioner is a teacher who is bound by service rules and thus cannot go against
16. The concept of public employment in the Government is of contractual in
nature. The Public servants while accepting the offer of appointment, made a
declaration that they will abide by the Service Rules and other conditions imposed by
the Government of Tamil Nadu for the betterment of the Administration.
This observation would raise the further question of whether an individual loses
his Fundamental Rights merely because entering into a contract with the
The Court then in the very next paragraph goes on to elaborate on how Rights are
subjected to duties.
17. Undoubtedly, the Right to Privacy is to be protected. However, such right
is subject to the performance of duties and responsibilities towards the public
by a public servant.
Then the court in its judgement leaves two options for the petitioner.
21. The introduction of such system are done in a public interest and to improve
the efficiency level of the public administration. This being the policy
decision taken by the Government, the writ petitioner cannot question the same
and it is for her to take a decision either to continue her services or to leave
the job. Contrarily, the petitioner cannot question the very policy of the
Government, which is introduced in the public interest to improve the public
administration, more specifically, in Government Schools.
Then the Court goes on in multiple paragraphs justifying how the State is forced
to resort to such measures of biometric attendance because the government school
teachers were not doing their jobs properly and in order to improve the
education in India such measures have to be taken. The Court even makes remarks
on tax payers' money and corruption in the system but fails to accept
nevertheless question the matter of privacy in the case.
Writing Judgements after not reading Judgements
The Madras High Court's decision ignored the fundamental rights that are
guaranteed by the Indian Constitution. It results in a breach of Article 21 of
the Indian Constitution as well as the right to privacy. It displayed
arbitrariness because it went against the "doctrine of proportionality," which
is regarded as a key test to be met whenever a person's fundamental rights are
The five judge bench of Supreme Court in 2018 had especially made it a point to
strike down Section 57 of the AADHAR Act because the provision allowed for
demanding AADHAR. The objective was of AADHAR was laid down as to empower the
underprivileged members of society by providing them with an identification and
enabling them to access the advantages and subsidies that the government
provides for them.
The High Court's understanding of AADHAR and its enabled biometrics is in
contrast to the spirit of the constitutional bench's judgement. There is no
reasonable nexus between how enforcing mandatory AADHAR enabled attendance lead
to betterment of government schools.
Also by the judgement the court has not only ignored the Right to Privacy under
Article 21 but also Article 19(1)(g) which guarantees a right to profession.
The Court has voluntarily chosen not to follow the path laid down in Puttaswamy
and give a judgement based on self-made arguments and visions that were not even
"No Article in Part III is an island but part of a continent, and the conspectus
of the whole part gives the directions and the correction needed for
interpretation of these provisions".- Justice Krishna Iyer
We can see from the aforementioned cases that various High Courts have had
multiple approaches to the matter of Right to Privacy. While all the Courts do
acknowledge the existence of Right to Privacy, a very few Courts go on to apply
the tests laid down in the Puttaswamy judgement to answer the privacy question.
Many courts have even denied a right to privacy without going in to the matter
at all. However it must be applauded that a number of High Courts have gone in
length to adjudicate upon cases using the principles and tests that were laid
down by the nine-judge bench.
Privacy as a right is so deeply interwoven in our Fundamental Rights that it
will be used in most cases where individual freedom is at risk. Presently we can
see how in the Karnataka Hijab ban case there are arguments being made in the
Supreme Court regarding Right to Privacy.
It is no doubt that Privacy is a right that needs protection and guarantee but
also the exceptions laid down make it a limiting right which also seems prudent.
In conclusion cases of Right to Privacy are cases in which one thing is of
utmost importance – that is which lens will the court choose to look at Right to
Privacy with and subsequently decide matters. Afterall Fundamental Rights are
like a Kaleidoscope of arguments and Right to Privacy is a rather polychromatic
- Raju Sebastian & Ors v. Union of India & Ors., 2019 SCC OnLine Ker 2884.
- K.S Puttawswamy v. UOI, (2017) 10 SCC 1.
- K.S Puttawswamy v. UOI, (2017) 10 SCC 1 ¶ 188 (H).
- Cochin Institute of Science and Technology v. Jisin Jijo, 2019 SCC
OnLine Ker 1800.
- Indian CONST. art 21.
- K.S Puttawswamy v. UOI, (2017) 10 SCC 1 ¶ 364
- X v. State of Uttarakhand, 2019 SCC OnLine Utt 1097
- Indian CONST. art 15.
- Indian Penal Code 1860 § 376.
- Indian Penal Code 1860 § 377.
- NALSA v. Union of India, (2014) 5 SCC 438
- AK Gopalan v. State of Madras, AIR 1950 SC 27
- Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248.
- Kharak Singh v. State of UP, AIR 1963 SC 1295.
- ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
- Vinit Kumar v. Central Bureau of Investigation & Ors., 2019 SCC OnLine
- People's Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
- Information Technology Act 2000, § 5 cl.2.
- K.S Puttaswamy v. UOI, (2017) 10 SCC 1 ¶ 490.
- State of Kerela v. Shyam Balkrishnan, 2019 SCC OnLine Ker 2158
- Code of Criminal Procedure 1973.
- Shashimani Mishra & Ors. v. State of Madhya Pradesh & Ors.,
- R. Annal v. State of Tamil Nadu, 2019 SCC OnLine Mad 1272
- Indian CONST. art 19. cl.1(g).