This article is written by Ishika Kushwah, a third-year B.A.LL.B(H) student, SAGE University, Indore, during her internship at Ledroit India.
Keywords: Right to Privacy, Article 21, Fundamental Rights, Aadhaar, Informational Privacy, Proportionality, Constitutional Law.
Abstract
The case addresses the fundamental conflict between the State’s demand for personal data and the individual’s right to autonomy and dignity. The main case involved a challenge to the constitutional validity of the Aadhaar scheme, which mandated the collection of biometric and demographic data. A nine-judge Constitution Bench of the Supreme Court of India unanimously delivered a landmark judgment, holding that the Right to Privacy is an intrinsic part of the Right to Life and Personal Liberty under Article 21 and part of the freedoms guaranteed by Part III of the Constitution. This judgment overruled previous contradictory precedents and established a robust legal standard—the triple test of proportionality—for any State interference with privacy.
Introduction
The digital revolution, while offering unprecedented convenience, has created a silent constitutional crisis: the threat of ubiquitous state and non-state surveillance. This concern was at the heart of the landmark case, Justice K.S. Puttaswamy (Retd.) v. Union of India, which redefined the landscape of fundamental rights in India. The core conflict was the tussle between the State’s ambition for a centralised biometric identification system (Aadhaar) and the individual’s claim to autonomy, dignity, and informational privacy. The question before the Supreme Court was existential: Is the right to be “let alone” a constitutionally protected fundamental right?
Legal Framework
The Right to Privacy is not explicitly mentioned in the Indian Constitution. The legal framework before the Puttaswamy judgment was contradictory, resting primarily on Article 21 (Protection of Life and Personal Liberty) and Article 19 (Protection of certain rights regarding freedom of speech, etc.).
– Initial View (Negative Precedents): The Supreme Court, in two major cases, had refused to recognise privacy as a fundamental right:
– M.P. Sharma v. Satish Chandra (1954): An eight-judge bench held that the Indian Constitution did not include a provision on the right to privacy similar to the Fourth Amendment of the U.S. Constitution regarding search and seizure.
– Kharak Singh v. State of Uttar Pradesh (1962): A six-judge bench held that the police surveillance rules, including domiciliary visits at night, did not violate any fundamental right. The majority explicitly stated that the Constitution did not guarantee a Right to Privacy.
– Subsequent Evolution (Positive Precedents): Over the years, smaller benches implicitly recognised facets of privacy under Article 21, creating ambiguity:
– Gobind v. State of Madhya Pradesh (1975): The Court linked privacy to the ‘personal liberty’ of an individual.
– R. Rajagopal v. State of Tamil Nadu (1994): It recognised the right to privacy as a part of the Right to Life of a citizen.
– People’s Union for Civil Liberties (PUCL) v. Union of India (1997): The Court recognised the right to privacy in telephone conversations.
The contradictions between the larger benches (M.P. Sharma, Kharak Singh) and the smaller benches necessitated the formation of a nine-judge bench in Puttaswamy to settle the law definitively.
Case Analysis
Facts:
The dispute began in 2012 when retired Karnataka High Court judge Justice K.S. Puttaswamy filed a writ petition contesting the constitutionality of the Aadhaar plan (Unique Identification plan) and the subsequent collection of biometric and demographic data. According to the government, Aadhaar is crucial for avoiding fraud and providing welfare payments. The petitioner claimed that the State’s required gathering and keeping of this personal information infringed upon the person’s basic right to privacy. In order to finally clarify the issue regarding the constitutional status of the right to privacy, the matter was referred to a nine-judge Constitution Bench due to the contradicting precedents made by larger courts (M.P. Sharma and Kharak Singh).
Issues:
The core legal question referred to the nine-judge Constitution Bench was:
– Whether the Right to Privacy is a Fundamental Right guaranteed to an individual under the Constitution of India.
– Whether the prior judgments of M.P. Sharma and Kharak Singh correctly laid down the law by holding that the Right to Privacy is not a fundamental right.
Arguments:
Arguments for the Petitioners (Against the Union of India)
– Privacy as a Fundamental Right: The main contention was that the right to privacy is an essential and unalienable component of both the various freedoms protected under Article 19 (such as freedom of speech and expression and freedom to reside and settle) and the Right to Life and Personal Liberty guaranteed under Article 21 of the Constitution.
– Overturning Precedents: It was contended that the earlier rulings in M.P. Sharma and Kharak Singh, which denied a basic right to privacy, should be overturned since they were founded on an antiquated and constrictive view of fundamental rights.
– Threat from Aadhaar: The Aadhaar scheme, by mandatorily collecting and centralising vast amounts of sensitive personal and biometric data, was argued to pose a significant threat to informational and bodily privacy, potentially leading to a surveillance state.
Arguments for the Respondents (Union of India)
– No Explicit Right: The government argued that the founders of the Constitution deliberately chose not to include the right to privacy as a basic right and that it is not expressly included in the document.
-Priority of Social Welfare: It was contended that by guaranteeing the direct delivery of welfare benefits and subsidies to the intended beneficiaries, the Aadhaar plan fulfilled a legitimate state goal and prevented fraud and leakage. This was portrayed as a greater good for the general public.
– Privacy is an Elitist Concept: The government further contended that the right to privacy was an “elitist concept” and that, for the great majority of India’s impoverished, access to food and welfare—which Aadhaar made possible—was their top priority.
– Common Law Right: Privacy, if recognised, should be treated only as a common law right, not a fundamental right enforceable against the state.
Judgment:
In a historic and unanimous verdict on August 24, 2017, the nine-judge bench answered the core issue affirmatively:
– Right to Privacy is Fundamental: The Court, speaking through Justice D.Y. Chandrachud (on behalf of four judges), held that 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.
– Overruling Precedent: The Court expressly overruled the majority decisions in M.P. Sharma and Kharak Singh, holding that the constitutional guarantee of liberty is a comprehensive one, encompassing privacy.
– Components of Privacy: The judgment recognised three main facets of privacy:
– Privacy of the Body: Protection from involuntary physical invasion.
– Informational Privacy: Right to control the flow and collection of personal data.
– Privacy of Choice/Decisional Autonomy: Right to make fundamental personal choices about one’s life, family, and sexual orientation.
– Restrictions on Privacy (Triple Test): The right is not absolute and can be restricted, but only if the State action satisfies a three-fold requirement:
– Legality: The action must be backed by a valid and clear law.
– Need: It must be necessary for a legitimate State aim.
– Proportionality: The extent of the intrusion must be proportionate to the objective (i.e., a rational nexus between the object and the means adopted).
Principles Established
The Puttaswamy judgment laid down the following foundational legal principles:
– Fundamental Right to Privacy: The Right to Privacy is integral to human dignity and is an intrinsic part of the fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution.
– Constitutional Anchor: The right is not derived from a single article but is guaranteed across Part III, drawing strength particularly from Articles 14, 19, and 21.
– Overruling Precedent: The principle that a decision by a smaller bench cannot ignore a decision of a larger bench was upheld by constituting a nine-judge bench, which then unequivocally overruled the flawed precedents of M.P. Sharma and Kharak Singh.
– Proportionality Test: Any State action that infringes upon the Right to Privacy must satisfy the “Triple Test” of Legality, Legitimate State Aim, and Proportionality. This became the definitive standard for judicial review of privacy invasions.
– Informational Privacy: The judgment explicitly recognised the concept of Informational Privacy as a key facet of the right, highlighting the need for a comprehensive data protection regime against both state and non-state actors.
Conclusion
The Puttaswamy judgment is a constitutional revolution, fundamentally reshaping the relationship between the citizen and the State in India. By recognising privacy as a fundamental right, the constitutionally protected right, the Supreme Court has provided a crucial check on unchecked executive power, particularly in the digital realm.
Critical Analysis:
The Court’s decision to classify privacy as an independent fundamental right, drawing from the “golden triangle” of Articles 14, 19, and 21, moves India’s jurisprudence beyond the narrow, textual approach of the past. By establishing the rigorous Triple Test of Proportionality, the Court provided a robust mechanism for judicial scrutiny, effectively immunising fundamental rights from arbitrary executive action. The judgment is a resounding affirmation that a constitutional right cannot be deemed a privilege of the elite, cementing its position as a right available to all citizens irrespective of their socio-economic status.
Impact and Need of the Hour:
The immediate impact was the use of this judgment as a precedent in subsequent landmark cases, notably Navtej Singh Johar v. Union of India (decriminalisation of homosexuality) and Joseph Shine v. Union of India (striking down Section 497 of the IPC on adultery), demonstrating its expansive nature in protecting decisional autonomy.
The need of the hour is for the Legislature to immediately enact a comprehensive, constitutionally compliant Data Protection Law that aligns with the principles established in the Puttaswamy verdict. The judgment created the fundamental right, but a robust legal and regulatory framework is essential to operationalise and enforce the right to informational privacy against both the State and powerful non-state entities (like technology corporations). Without such a law, the victory for privacy remains incomplete, leaving a critical gap in the shield protecting individual autonomy in the digital age.
Citations:
– The challenge to the biometric identification program arose in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017).
– The Supreme Court’s unanimous nine-judge bench decision affirmed that privacy is intrinsic to the right to life and personal liberty guaranteed under Article 21 of the Constitution.
– The prior, restrictive view on privacy was articulated in the six-judge bench decision of Kharak Singh v. State of Uttar Pradesh (1962).
References:
– Cases:
- M.P. Sharma v. Satish Chandra, District Magistrate, Delhi, AIR 1954 SC 300
– Key Issue: Whether search and seizure of documents under the Code of Criminal Procedure violated fundamental rights, specifically the right against compelled self-incrimination (Article 20(3)).
– Holding: The eight-judge bench held that the power of search and seizure by the State, being a temporary interference, did not violate Article 20(3), as it was not testimonial compulsion.
– Privacy Stance: Crucially, the court held that the Indian Constitution did not have a provision analogous to the Fourth Amendment of the US Constitution (prohibiting unreasonable searches) and thus did not recognise a fundamental right to privacy. This position was later overruled by Puttaswamy.
- Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
– Key Issue: Challenging police surveillance practices, including domiciliary visits (visits to a person’s house at night) and tracking, under the U.P. Police Regulations, as a violation of fundamental rights.
– Holding: The majority opinion struck down the regulation allowing nightly domiciliary visits as violating Article 21 (Right to Life and Personal Liberty) because it was an intrusion into a person’s life that was not backed by a valid law.
– Privacy Stance: The majority explicitly stated that the Constitution did not guarantee a right to privacy. However, a powerful minority judgment by Justice Subba Rao did recognise the right to privacy as an essential ingredient of personal liberty under Article 21, a view that was ultimately affirmed in Puttaswamy.
- Gobind v. State of Madhya Pradesh and Anr., (1975) 2 SCC 148
– Key Issue: Challenge to Madhya Pradesh Police Regulations allowing for the surveillance (including domiciliary visits) of habitual offenders.
– Holding: The court upheld the validity of the regulations, but significantly, it recognised that the right to privacy is implicit in Article 19(1)(d) (freedom of movement) and Article 21 (personal liberty).
– Significance: While dismissing the petition on facts, this judgment marked an evolution from Kharak Singh. It stated that the right to privacy is a non-absolute right that must be subject to compelling public interest and restrictions based on a valid, narrowly-tailored law, thereby laying the groundwork for the comprehensive recognition in Puttaswamy.
– Statutes/Constitutional Provisions:
– The Constitution of India, 1950.
– Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
– Articles/Reports (Example):
– Chandrachud, D. Y. (2017). Judgment of Dr D. Y. Chandrachud, J., in Justice K. S. Puttaswamy (Retd.) v. Union of India.
