Right To Privacy Part Iii

Case Law, India: Puttaswamy v Union of India, Supreme Court
recognises a constitutional right to privacy in a landmark judgment

– Hugh Tomlinson QC
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.

Right To Privacy Part Iii

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Right To Privacy Part Iii

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Case Law, India: Puttaswamy v Union of India, Supreme Court

recognises a constitutional right to privacy in a landmark judgment

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