KEY LEARNINGS

FROM RECENT
SUPREME COURT JUDGEMENTS
KASHMIR BEFORE
INDEPENDENCE
1. Jammu & Kashmir, then known as
just `Kashmir', was a semi-
Independent Country, under the
British suzerainty ruled by a Dogra
Hindu King.
2. The Country was of diverse
ethnicities, climates, topographies,
religions and cultures.
3. It spreads across from Karakoram
ranges to Punjab plains.
4. It has almost 80% of Muslim
population.
THE ISSUE OF PERMANENT RESIDENTS ...
ORIGIN GOES BACK TO 1927

1. Punjabi Muslim Elite started

acquiring land and govt jobs.
2. So, Kashmiri Pandits were
apprehensive.
3. So, Maharaja Hari Singh in 1927
introduced State Subject Law.
 THE INSTRUMENT OF ACCESSION SIGNED BY
MAHARAJA HARI SINGH IN 1947

1. It gave New Delhi control only over

Kashmir's defence, foreign policy and
communications. In all other matters,
the State Govt. retained powers.
2. Though, it was not fully integrated
state in India.
3. The issue became more complicated
by New Delhi's international
commitment to hold a plebiscite in
the State to decide its eventual fate.

Maharaja Hari Singh

 WHAT WAS THE SITUATION IN THOSE DAYS?

1. Sheikh Abdullah became the Prime Minister of Kashmir.

2. The State had its own Constituent Assembly and flag and there were customs
checks between India and the State.
3. The Supreme Court of India did not have jurisdiction over key issues in the State.
4. Kashmir militia was constituted as a separate force.
5. Srinagar tried to send its own Trade Commissioners to foreign countries.
6. India's fundamental rights and directive principles were not applicable in Jammu
and Kashmir at all.

India's Constitution came into force on 26th January, 1950. New Delhi's powers
over Jammu and Kashmir were defined more clearly only subsequently and 1954
Presidential Order was one such arrangement.
 PRESIDENTIAL ORDER OF 1954
• In January 1954, New Delhi negotiated a new Agreement with Bakshi. It was passed by the Kashmir
Constituent Assembly in February and eventually introduced through a Presidential Order in May.
• It still left the State with enormous autonomy. Foremost, all “residuary powers” vested with the State
Legislature.
• It retained the controversial land reform measures and the final authority over any alteration of the State's
boundaries.
• For the first time, India's fundamental rights and directive principles were applicable to Jammu and
Kashmir and the State's finances were integrated with India.
• The lesser known provisions at that time was Article 35A i.e., legacy from the era, prior to Independence.
• The Order also extended the Indian Supreme Court's jurisdiction over certain aspects of Jammu and
Kashmir.
• The overall gist of the Order was to give the Govt. of India enormously more powers over the State, than it
had enjoyed before.
In fact, at the time of its introduction, the Order was celebrated in India as a great step
towards bringing Jammu and Kashmir closer into the Union of India.
 WHY ARTICLE 35A IS INTO THE
NEWS?
1. There was a writ petition filed by an NGO
“We the Citizens” challenging the validity
of both Article 35A and Article 370.
2. It argued that four representatives from
Kashmir were part of the Constituent
Assembly involved in the drafting of the
Constitution and the State of Jammu and
Kashmir was never accorded any special
status in the Constitution.
3. Article 370 was only a 'temporary
provision’ to help bring normalcy in
Jammu and Kashmir and strengthen
democracy in that State.

The provision also mandates that no act of
the Legislature coming under it can be
challenged for violating the Constitution or
any other law of the land.
WHAT IS ARTICLE 35A?
1. It is the provision incorporated in the
Constitution in 1954.
2. It gives the Jammu and Kashmir
Legislature a carte blanche to decide, who
are all `Permanent Residents’ of the State.
3. This confers on them special rights and
privileges in public sector jobs, acquisition
of property in the State, scholarships as
well as public aid and welfare.
4. If a native woman marries a man not
holding a permanent resident certificate
of Jammu & Kashmir, then she would
restrict from her property right.
 WHAT IS THE LOGIC OF
ARTICLE 35A?
• It protects the state's distinct
demographic character.
• Kashmir region of Jammu and
Kashmir is a Muslim-majority
Region.
• The presumption is dilution of
Article 35A encourages Hindus
to migrate to the State, which
may alter the demographic
character of the State.
 WAS IT DONE BY AMENDING THE
CONTITUTION?
1. No. It was not done through Article 368.
2. It was done through Presidential Order.
3. President is empowered through Article 370.
Whether such order should in concurrence with
Parliament or not – is not clear.
4. Challenges before SC:
1. Not allowing Indians (outsider of J&K) is a violation of
Article 14,15 & 21.
2. Article 368 is the only way to amend the Constitution or
not.
Currently, matter is Sub-Judice, and SC
will hear the case in 2019.
Right to privacy as a
SALIENT POINTS
fundamental right protected
• On 24 August 2017, the Supreme
under the Indian Constitution. Court of India in a historic
judgement declared the right to
privacy as a fundamental right
protected under the Indian
Constitution.
• In declaring that this right stems
from the fundamental right to life
and liberty, the Court's decision
has far-reaching consequences.
 SALIENT POINTS
• A nine-judge bench of the Supreme
Court in the case of Puttuswamy v.
Union of India has declared that the
right to privacy is a fundamental right
protected under Part III of the
Constitution of India.
• While primarily focused on the
individual's right against the State for
violations of their privacy, this landmark
judgement will have repercussions
across both State and non-State actors
and will likely result in the enactment of
a comprehensive law on privacy.
 SALIENT POINTS
• The Case came in Connection to a Legal Challenge to Aadhaar (India’s
National Identity project).
• It was argued that Privacy is not a Fundamental Right!
• arguments were based on two cases decided by the Supreme Court -
one, MP Sharma v. Satish Chandra decided by an eight judge bench in
1954 and the other, Kharak Singh v. State of Uttar Pradesh, by six judges
in 1962.
• Both cases had held, in different circumstances, that the Constitution of
India does not specifically protect the right to privacy.
 SALIENT POINTS
• MP Sharma dealt with the right against self-
incrimination and, while it did mention the right to
privacy in passing, it was clear that these comments
were stray observations at best.
• Kharak Singh was a confusing decision that held, on
the one hand, that any intrusion into a person's
home is a violation of liberty (relying on a US
judgement on the right to privacy), but went on to
say that there was no right to privacy contained in
our Constitution.
• Since these were eight and six judge benches of the
Supreme Court, every subsequent court had to deal
with this confusion as best they could.
 KEY FINDINGS IN THE JUDGEMENT
• The judgement was unanimous
with all nine judges concurring
with the final order. However, six
judges - Justice Chandrachud,
Justice Nariman, Justice
Chimaleshwar, Justice Kaul,
Justice Sapre and Justice Bobde,
wrote separate opinions
covering a wide range of issues.
 KEY FINDINGS IN THE JUDGEMENT
• (a) Right to Privacy - A Fundamental Right
• The Supreme Court confirmed that the right to privacy is a fundamental right
that does not need to be separately articulated but can be derived from
Articles 14, 19 and 21 of the Constitution of India.
• It is a natural right that subsists as an integral part to the right to life and
liberty.
• It is a fundamental and inalienable right and attaches to the person covering
all information about that person and the choices that he/ she makes.
• 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.
 SALIENT POINTS
• (b) Not an Absolute Right - Subject to Reasonable Restrictions
• The Supreme Court was at pains to clarify that the fundamental right to privacy is not
absolute and will always be subject to reasonable restrictions. It held that 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.
• Consequently, all State action that could have an impact on privacy will now have to
be measured against this three-fold test. This is likely to have an impact on several
ongoing projects including most importantly, the Aadhaar identity project.
• (c) Other Incidental Implications
• There are several additional implications of this judgement on matters incidental to the principal
issue decided by the Court:
• By expressly recognising an individual's right to privacy regarding his sexual choices, the
judgement is likely to have an impact on the petition pending before the Supreme Court on the
de-criminalisation of homosexuality in India.
• To the extent that the judgement has stated that the State cannot interfere in the food choices of
an individual it will have an impact on the various cases protesting the ban on beef imposed by
certain States.
• The judgement has also made several observations on the complex relationship between
personal privacy and big data, particularly in the context of how the judicious use of these
technologies can result in the State achieving its legitimate interests with greater efficiencies.
• It has also recognized the impact that non-State actors can have on personal privacy particularly
in the context of informational privacy on the Internet. While fundamental rights are ordinarily
only enforced against actions of the State, given the broad language of the judgement and the
extent to which informational privacy has been referred to in the judgement, there is concern
amongst certain experts that these principles will extend to the private sector as well.
 What will be the Impact of Right to Privacy?
• No immediate impact on regular activities
• But Indian courts will see many cases in a different light
and will have a bigger impact on these cases.
• For example, Section 377 of IPC, Triple Talaq, Aadhar
card etc.
• What will happen to surveillance on Social Media by
the State? – State may be sued if violative of
fundamental right.
• What will happen when an individual and not the state
violates your right to privacy?- You get legal remedy.
Cases are yet to come on this ground.
• What is the status of Privacy of Customers, Employees
etc? Govt is yet to make comprehensive law on this but
one is protected under Right to Privacy.