Is Privacy An Integral Right or A Vague Notion? The Nine-Judge
Is Privacy An Integral Right or A Vague Notion? The Nine-Judge
accounts has been extended until the disposal of Aadhaar case. ‘SC extends
March 31 deadline for Aadhaar linkages till the constitution bench delivers
judgement on the matter,’ PTI reported. Earlier, the deadline to link Aadhaar with
various services was set for March 31, 2018. However, the order will not apply to
the deadline for subsidies and benefits under Section 7. This effectively means
that the order will not apply in cases where subsidies are given by the
government.
In another significant order, the apex court ruled that Aadhaar cannot be made
mandatory for issuing Tatkal passport. The order was passed by the Constitution
Bench of the top court comprising Chief Justice Dipak Misra and Justices AK
Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan.
The Supreme Court had in 2013 prevented the government from forcing people
to submit their Aadhaar number to access welfare schemes. However, the BJP-
led NDA government managed to get around this hurdle by getting parliamentary
approval for a new law in 2016.
Aadhaar, a Congress project, was originally launched in 2009-10 under the UPA
dispensation.
THE PETITIONERS
Former Karnataka HC judge, KS Puttaswamy, now 91, filed the PIL in 2012
challenging the Aadhaar scheme, saying it violates fundamental rights to
privacy and equality. SC has linked all the 20+ Aadhaar cases to this main
case. Petitioners include activists Bezwada Wilson, Aruna Roy and Nikhil Dey.
For Puttaswamy, this was reportedly the first time he felt need to petition the
courts in any matter.
THE BENCH
The high profile bench that will decide the question of privacy. Here are the
judges:
1. JS Khehar
2. J Chlameswar
3. SA Bobde
4. RK Agarwal
5. RF Nariman
6. AM Sapre
7. DY Chandrachud
8. SK Kaul
THE VERDICT
In a landmark decision that will affect the lives of all Indians, the Supreme
Court unanimously declared that right to privacy was a Fundamental right
under the Constitution. A nine-judge Constitution bench headed by Chief
Justice JS Khehar ruled that "right to privacy is an intrinsic part of Right to Life
and Personal Liberty under Article 21 and entire Part III of the Constitution".
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.
“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 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, 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:
INTRODUCTION:
‘Every man’s home is his castle’.[1] This famous proverb is self- sufficient to define the importance of
privacy in an individual’s life. In India the importance of this very right has been recognized by the
apex court in the case of K.S Puttaswamy vs Union of India.[2] The Supreme Court in this case
unanimously held that right to privacy is a fundamental right guaranteed under Article 21 of the
Constitution. Thus now Indians too enjoy right to privacy in the same manner as their counter-parts
do in the western countries.
Many ancient philosophers like Aristotle and Plato too considered Privacy important. In modern
times importance of privacy in an individual’s life, has been firstly defined by an American scholar in
the late 19th century.[3] Privacy has been recognized as a basic human right by many developed and
developing countries. However, in India this right was not been given much importance, neither by
the Constituent assembly nor by the Supreme Court of India.
Government of India initiated Aadhaar project, with an objective 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 has now been made
mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property
etc…
In 2012, former judge Justice K.S. Puttaswamy filed a writ petition in the Supreme Court challenging
the constitutionality of Aadhaar Project on the grounds that it violates the right to privacy. The
Government argued that there was no such constitutional right of privacy in view of the decision
given by eight judges in M.P. Sharma v. Satish Chandra[4] and a decision by a four judges in Kharak
Singh v. State of Uttar Pradesh.[5]
The case came before a three judge Bench of the Court which, on 11 August 2015, referred the
matter 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. In the meantime however the bench hearing the
constitutional validity to Aadhaar passed an interim order restricting compulsory linking of Aadhaar
for benefits delivery.[6]
1. Whether the judgment pronounced by the constitutional bench, in the case of M.P Sharma
and Kharak Singh that there is no right of privacy in the constitution, is correct.
During the hearing of the present case, the court also dealt on various aspect of privacy-
JUDGMENT:
The court in this case unanimously held that privacy is a constitutionally protected right which
emerges, primarily, from Article 21 of the Constitution. However, this is not an absolute right but
interference must meet the three fold requirement of (i) Legality; (ii) the need for a legitimate aim and
(iii) proportionality. The court 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.
2. Decision in Kharak Singh, to the extent it says Right to Privacy is not part of Right to Life, is
also over ruled.
3. Right to Privacy is an intrinsic part of life and personal liberty under Article 21.
4. Decisions subsequent to Kharak Singh which held privacy as part of right to life are correct.
[8]
AN APPRAISAL:
The decision given by the apex court in the case of K.S Putaswamy vs Union of India has opened
new doors for the people of India. This very judgment will highly affect the Indian policy making. The
change can be called a positive change as now more importance will be given to the individuality
and personal liberty of an individual. The interest of individual will now be given equal importance as
to the interest of state, and now the individuals can decide, whether they want to share their
personal data to the state or not. They have a right of making choice.
This judgment will also affect the court’s decision with respect to section 377 of I.P.C, as now
homosexuality comes under the ambit of private matter. Thus the state should not interfere in this
very matter. However, the judges have made it clear that the ruling does not deal with the matter of
decriminalizing homosexuality directly as a separate bench is dealing that very particular case.
Hence Puttaswamy judgment can be considered as 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.[9]
[1] Gregory Y. Titelman, Random House Dictionary of Popular Proverbs and Sayings, at 229
(1stedition 1996).
[2] K.S Puttaswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012.
[3] Daniel J. Solove, Understanding Privacy (1st edition, Harvard University Press 2008).
[4] M.P. Sharma v. Satish Chandra [1954] SCR 1077.
[6] Hugh Tomlinson, ‘Puttaswamy v Union of India: Supreme Court recognises a constitutional right
to privacy in a landmark judgment’, (Inform’s Blog, September 4, 2017)
7] K.S Puttaswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012.
[8] K.S Puttaswamy vs Union of India, Writ Petition (Civil) No. 494 of 2012.
[9] Anurag Bhaskar, ‘Key Highlights of Justice Chandrachud’s Judgment in the Right to Privacy
Case,’ (The Wire, 27 August, 2017) < https://thewire.in/171325/justice-chandrachud-judgment-right-
to-privacy/ > accessed 4th January, 2018.
“I have seen situations, where the AUA argued that UIDAI has
barred to store biometric and OTP on permanent storage and
not on temporary storage. And the limit of temporary storage
and/or period is not defined. This temporary period can span
from few milliseconds to months. This so-called temporary
storage is potential source for biometric data to be leaked or
stolen or stored or shared. There are methods to mitigate this
risk but UIDAI has not defined the same in its audit checklist
and any processes,” Dr Goyal says.
The bench will consider whether Aadhaar violates the right of privacy.
The bench, comprising Chief Justice of India J.S. Khehar, and Justices D.Y.
Chandrachud, J. Chelameswar, S.A. Bobde and Abdul Nazeer, will examine a
plethora of issues arising out of the Centre’s 12-digit biometric identification
number.
For the court to delve into the privacy issue in detail, it will first have to take a
call on the strength of the bench and decide whether there is a need to refer
the issue to a larger bench.
To make this decision, the Supreme Court will have to consider legal
precedents and study the scope of privacy under each of them to decide on the
number of judges. The five judges would then either continue to look into the
privacy issue or refer the issue back to the chief justice for the constitution of a
nine-judge bench.
Should the five-judge bench decide to rule on the case itself and not refer it to
a larger bench, it could decide the future of Aadhaar, which has become the
backbone of government welfare programmes, the tax administration network
and online financial transactions.
On 13 July, the Supreme Court had ruled for the setting of a constitution
bench to address the long standing question of whether Indian citizens have
the right to privacy, and if Aadhaar breaches the right.
The centre has maintained its stand that right to privacy is not a fundamental
right. Then attorney general Mukul Rohatgi told the Supreme Court in 2015
that Indian citizens don’t have a fundamental right to privacy under the
Indian Constitution—an argument he repeated subsequently.
The new attorney general K.K. Venugopal has told the court that at least 350
million people were able to access benefits under various government
schemes.
On the other hand, Shyam Divan, counsel for one of the petitioners had
compared the situation to one under a totalitarian regime where people were
being forcefully tagged and tracked by the government.
A look at the list of 22 cases referred to the five-judge constitution bench that
is set for its first hearing focussing on privacy issues surrounding Aadhaar.
17. Indian Oil vs All Orissa Consumer Protection Council: Details Not
Available
4. The other judges in the five-judge bench are Justices AK Sikri, AM Kanwilkar, DY
Chandrachud and Ashok Bhushan.
5. "We are of the considered view that the resolution of the issues raised before the
Court should proceed at the earliest...This will ensure clarity for citizens on the one
hand and for the Union and the state governments and the instrumentalities on the
other hand," the court had observed in December.
6. Critics say the Aadhaar identity enables government and private bodies to link
enough data to allow profiling because it creates a comprehensive profile of a person's
spending habits, friends and acquaintances, property and other such data.
7. Aadhaar was set up to be a secure form of digital identification for citizens, one
that they could use for government services. The project was initially carried out through
executive orders and was voluntary.
8. The Supreme Court in 2013 prevented the government from forcing people to
submit their Aadhaar number to access welfare schemes. The NDA government worked
around this restriction by getting parliamentary approval for the law in 2016 that gave it
wide powers.
10. PM Modi also mandated that new-borns too be issued the number, not just
children after they turn five. This would make the number, issued after a person's
fingerprints and iris, a cradle to grave digital identity for every resident.
Aadhaar Isn't Just About Privacy.
There Are 30 Challenges the Govt
Is Facing in Supreme Court
The number of cases against Aadhaar have bloated since 2012. As
hearings begin again before the apex court, a look at what the
cases are:
New Delhi: The Aadhaar case has bloated. Hearings on the
case, that has been on hold since 2015, once again began
in the Supreme Court on Wednesday with the petitioner’s
arguments. With the government finding a way to make
Aadhaar all-encompassing, the Aadhaar case has bloated to
about 30 petitions and six interventions which the government
faces today.
Also read: Who Is Running the ‘Orchestrated Wine And Cheese Campaign’ Against Aadhaar in the
SC?
It was here that Mukul Rohatgi, the then Attorney General, told
the court that India did not actually have a fundamental right
to privacy and that the law at the time had some amount of
judicial disagreement which would have to be clarified first.
But the bench took Rohatgi seriously and referred the matter
of privacy to a rare nine-judge bench of the Supreme Court.
New art
Menon contended that Aadhaar was an “insecure, unreliable, unnecessary and
inappropriate technology project which is being foisted with coercion on the most
vulnerable section of Indians and is threatening their constitutional and legal rights
and en...