Proportionality means that any action should not be more drastic than

it ought to be for obtaining the desired result implying that a cannon

cannot be used to kill a sparrow.[6]  Doctrine of proportionality comes
into picture in constitutional law when the courts through judicial review or
otherwise, judge the reasonableness of a restriction on the exercise of
fundamental rights. The Supreme court stressed upon the proportionality
test as early as in the 1950s in the case of Chintaman Rao v State of
MP[7]:
“The limitation imposed on a person in enjoyment of the right should not be
arbitrary or of an excessive nature, beyond what is required in the interests
of the public“
According to Westin, “Solitude is a physical separation from others. Intimacy is a close, relaxed, and
frank relationship between two or more individuals that results from the seclusion of a pair or small
group of individuals. Anonymity is the desire of individuals for times of public privacy. Lastly, reserve
is the creation of a psychological barrier against unwanted intrusion; this creation of a psychological
barrier requires others to respect an individual's need or desire to restrict communication of
information concerning himself or herself”.

Finally, the third content of privacy deals with protection, preservation and the flow of personal
information. The advanced technological development bears the potential of generating databases
having information which is personal as well as public. More precisely, information privacy concerns
an individual's control over the processing i.e., the acquisition, disclosure, and use of personal
information. Technology allows monitoring and tracing of individual’s activities and behavioural
patterns at every facet of his daily routine even though he or she is left alone. This interference is
directly or indirectly not favourable the pursuit of individual’s right to privacy

In Binoy Viswam v. Union of India & Ors.20, scope of judicial review of legislative Act was described
in the following manner: “76. Under the Constitution, Supreme Court as well as High Courts are
vested with the power of judicial review of not only administrative acts of the executive but
legislative enactments passed by the legislature as well. This power is given to the High Courts under
Article 226 of the Constitution and to the Supreme Court under Article 32 as well as Article 136 of
the Constitution. At the same time, the parameters on which the power of judicial review of
administrative act is to be undertaken are different from the parameters on which validity of
legislative enactment is to be examined. No doubt, in exercises of its power of judicial review of
legislative action, the Supreme Court, or for that matter, the High Courts can declare law passed by
Parliament or the State Legislature as invalid. However, the power to strike down primary legislation
enacted by the Union or the State Legislatures is on limited grounds. Courts can strike down
legislation either on the basis that it falls foul of federal distribution of powers or that it contravenes
fundamental rights or other constitutional rights/provisions of the Constitution of India. No doubt,
since the Supreme Court and the High Courts are treated as the ultimate arbiter in all matters
involving interpretation of the Constitution, it is the courts which have the final say on questions
relating to rights and whether such a right is violated or not. The basis of the aforesaid statement lies
in 20 (2017) 7 SCC 59 Writ Petition (Civil) No. 494 of 2012 & connected matters Page 113 of 567
Article 13(2) of the Constitution which proscribes the State from making “any law which takes away
or abridges the right conferred by Part III”, enshrining fundamental rights. It categorically states that
any law made in contravention thereof, to the extent of the contravention, be void. 77. We can also
take note of Article 372 of the Constitution at this stage which applies to pre-constitutional laws.
Article 372(1) reads as under:
This was further clarified in A.L. Kalra v. Project and Equipment Corpn., following Royappa and
holding that arbitrariness is a doctrine distinct from discrimination. It was held: (A.L. Kalra case, SCC
p. 328, para 19) “19. … It thus appears well settled that Article 14 strikes at arbitrariness in
executive/administrative action because any action that is arbitrary must necessarily involve the
negation of equality. One need not confine the denial of equality to a comparative evaluation
between two persons to arrive at a conclusion of discriminatory treatment. An action per se
arbitrary itself denies equal of (sic) protection by law. The Constitution Bench pertinently observed
in Ajay Hasia case and put the matter beyond controversy when it said: (SCC p. 741, para 16) ‘16. …
Wherever therefore, there is arbitrariness in State action whether it be of the legislature or of the
executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes
down such State action.’

Gobind v. State of M.P.28 Various opinions conclude that: (a) privacy is a concomitant of the right of
the individual to exercise control over his or her personality. (b) Privacy is the necessary condition
precedent to the enjoyment of any of the guarantees in Part III. (c) The fundamental right to privacy
would cover at least three aspects – (i) intrusion with an individual’s physical body, (ii) informational
privacy, and (iii) privacy of choice. (d) One aspect of privacy is the right to control the dissemination
of personal information. And that every individual should have a right to be able to control exercise
over his/her own life and image as portrayed in the world and to control commercial use of his/her
identity.

R.F. Nariman, J. : Writ Petition (Civil) No. 494 of 2012 & connected matters Page 127 of 567 521. In
the Indian context, a fundamental right to privacy would cover at least the following three aspects: 
Privacy that involves the person i.e. when there is some invasion by the State of a person's rights
relatable to his physical body, such as the right to move freely;  Informational privacy which does
not deal with a person's body but deals with a person's mind, and therefore recognises that an
individual may have control over the dissemination of material that is personal to him. Unauthorised
use of such information may, therefore lead to infringement of this right; and  The privacy of
choice, which protects an individual's autonomy over fundamental personal choices.

Informational traces are also an area which is the subject-matter of huge debate in various
jurisdictions falling within the realm of the right to privacy, such data is as personal as that of the
choice of appearance and apparel. Telephone tappings and internet hacking by State, of personal
data is another area which falls within the realm of privacy. Chaleswar j ks put

Another significant jurisprudential development of this judgment is that right to privacy as a

fundamental right is not limited to Article 21. On the contrary, privacy resonates through the
entirety of Part III of the Constitution which pertains to fundamental rights and, in particular, Articles
14, 19 and 21. Ks put

Privacy is also recognised as a natural right which inheres in individuals and is, thus, inalienable.

The petitioners have sought to build their case on the aforesaid parameters of privacy and have
submitted that this right of privacy, which is now recognised as a fundamental right, stands violated
by the very fabric contained in the scheme of Aadhaar. It is sought to be highlighted that the data
which is collected by the State, particularly with the authentication of each transaction entered into
by an individual, can be assimilated to construct a profile of such an individual and it particularly
violates informational privacy
The petitioners have sought to build their case on the aforesaid parameters of privacy and have
submitted that this right of privacy, which is now recognised as a fundamental right, stands violated
by the very fabric contained in the scheme of Aadhaar(include the tracebility paragraph here). It is
sought to be highlighted that the data which is collected by the State, particularly with the
authentication of each transaction entered into by an individual, can be assimilated to construct a
profile of such an individual and it particularly violates informational privacy. No doubt, there can be
reasonable restrictions on this right, which is conceded by the petitioners.

It was submitted that Aadhaar project creates the architecture of a ‘cradle to grave’ surveillance
state and society. This means that it enables the State to profile citizens, track their movements,
assess their habits and silently influence their behaviour throughout their lives. Over time, the
profiling enables the State to stifle dissent and influence political decision making. The Writ Petition
(Civil) No. 494 of 2012 & connected matters Page 219 of 567 architecture of the project comprises a
Central Identities Data Repository which stores and maintains authentication transaction data. The
authentication record comprises the time of authentication and the identity of the requesting entity.
The UIDAI and the Authentication Service Agency (ASA) is permitted to store this authentication
record for 2 + 5 years (as per Regulations 20 and 26/27 of the Authentication Regulations). Based on
this architecture it is possible for the State to track down the location of the person seeking
authentication. Since the requesting entity is also identified, the activity that the citizen is engaging
in is also known. (Sections 2(d), 2(h), 8, 10, 32 of the Act read with Regulations 18, 20, 26 of the
Aadhaar (Authentication) Regulation, 2016).

when it comes to restrictions on this right, the drill of various Articles to which the right relates must
be scrupulously followed. For example, if the restraint on privacy is over fundamental personal
choices that an 41 Ibid, at page 549 42 Ibid, at page 580 PART B 31 individual is to make, State action
can be restrained under Article 21 read with Article 14 if it is arbitrary and unreasonable; and under
Article 21 read with Article 19(1)(a) only if it relates to the subjects mentioned in Article 19(2) and
the tests laid down by this Court for such legislation or subordinate legislation to pass muster under
the said Article. Each of the tests evolved by this Court, qua legislation or executive action, under
Article 21 read with Article 14; or Article 21 read with Article 19(1) (a) in the aforesaid examples
must be met in order that State action must pass muster.”43

The third principle (iii above) adopts the test of proportionality to ensure a rational nexus between
the objects and the means adopted to achieve them. The essential role of the test of proportionality
is to enable the court to determine whether a legislative measure is disproportionate in its
interference with the fundamental right. In determining this, the court will have regard to whether a
less intrusive measure could have been adopted consistent with the object of the law and whether
the impact of the encroachment on a fundamental right is disproportionate to the benefit which is
likely to ensue.

 Rules 3(1)(b) and 3(1)(c) permit social media intermediaries (such as Facebook) to
decide whether any content uploaded by a user violates any law in force and if it does,
the entity can terminate the access or usage rights of the user. This enables private
entities such as Facebook, to be an arbiter of permissible speech and is in violation of the
directions of the Hon’ble Supreme Court in Shreya Singhal vs Union of India. In that
case, the Court held that intermediaries cannot decide permissibility of any content
without an order of a court or an order by the Government.
 Rule 4(2) requires significant social media intermediaries which provide messaging
services (such as Whatsapp) to enable identification of the “first originator” of a message.
 To implement this rule, entities will have to “fingerprint” each message and this may
defeat end-to-end encryption. As a consequence, privacy of every user will be
compromised to investigate crimes committed by a miniscule-minority.
 Rule 4(4) requires significant social media intermediaries to develop automated tools to
censor content. While the efficacy of such tools is itself doubtful, intermediaries will
collect large amounts of data of users to develop these tools in violation of the Right to
Privacy of users.

 Creation of differential obligations: Fresh classes have been created including, “social media
intermediary” [Rule 2(w)] and “significant social media intermediary” [Rule 2(v)]. The threshold for
social media intermediary to be considered and regulated as a “significant social media
intermediary” was notified on February 26, 2021, as fifty lakh (5 million) registered users. These
categories bring a high level of government discretion in determining which platforms need to
comply with what regulations. Such power is further reinforced by Rule 6, as per which the
government may, by order, require *any intermediary* to comply with obligations imposed on a
“significant social media intermediary” under Rule 4. To do so, it must satisfy the threshold of “a
material risk of harm”. This threshold is vague, and it enables the Central Government to enforce
discriminatory compliances.

Hello big brother! Expansion of mandatory data retention: The data retention period has
been doubled, and intermediaries are now required to preserve information for 180 days (6
months!) for investigative purposes [Rule 3(1)(h)]. The data has to be preserved even after a
user has deleted their accounts. It is important to consider this requirement in the absence of a
data protection law and any kind of oversight on how surveillance operates in India (side note:
IFF is a litigant challenging it in the Supreme Court). Right to choose

Significant social media intermediaries must enable tracing of the originator of information on
their platform if required by a court of competent jurisdiction or a competent authority under
Section 69A of the IT Act [Rule 4(2)]. While the Intermediaries Rules clarify that traceability order
may only be passed for serious offences, some categories are open-ended. For instance, “public
order” grounds are relatively broad in operation and can give rise to many demands. The
Intermediaries Rules also clarify that in doing so, the significant social media intermediary shall
not be required to disclose the contents of any electronic message, any other information related
to the first originator, or any information related to its other users. However, the Information
Technology Decryption Rules contain powers to make demands for the message content.
Used together, the government will break any type of end-to-end encryption to gain knowledge of
who sent what message and also get to know its contents. Also, this specific requirement will
break existing protocols for the deployment of end-to-end encryption that has been built through
rigorous cybersecurity testing over the years!

While the government is placing it as a move to fight fake news, privacy

experts have raised concerns about encryption if companies like
WhatsApp, Signal etc will have to follow them. Internet Freedom
Foundation tweeted, “Due to excessive vagueness in the rules, there is a
possibility of over-compliance by social media companies to escape
liability. The collateral damage here is citizen free speech and privacy
which will be unconstitutionally hampered as a result.”