JUSTICE K. S. PUTTASWAMY V.

UNION OF INDIA

A project submitted to

Army Institute Of Law, Mohali

By

Aradhya Jain

Under the guidance of

Prof. Amrita Rathi

In the Partial Fulfilment of The Requirement For The

Award of Degree of BA LLB.

Punjabi University, Patiala, Punjab

July-December 2021
 DECLARATION

It is certified work present in this report entitled “Justice K. S. Puttaswamy v. Union of India.”
embodies the results of original research work carried out by me. All the ideas and references
have duly acknowledged.

DATE: NAME: Aradhya Jain

PLACE: ROLL NO.: 1877
 ACKNOWLEDGEMENT

The success and outcome of this project required a lot of guidance and assistance from many
people and I am extremely privileged to have got this all along the completion of my project. All
that I have done is only due to such supervision and assistance and I would not forget to thank
them all.

I respect and thank Prof. Amrita Rathi, for providing me an opportunity to do the project work
and giving us all support and guidance, which made me complete the project duly. I am
extremely thankful to her for providing such a nice support, although she had busy schedule
managing the corporate affairs.

I am thankful to and fortunate enough to get constant encouragement and guidance from all
teaching staff which helped me in successfully completing our project work. Also, I would like
to extend our sincere esteems to all for their timely support.
 INDEX
INTRODUCTION ........................................................................................................................................ 1

INSIGHTS ON THE CASE.......................................................................................................................... 2

BACKGROUND .......................................................................................................................................... 3

FACTS IN BRIEF......................................................................................................................................... 4

ISSUES RAISED .......................................................................................................................................... 4

PETITIONERS ARGUMENTS ................................................................................................................... 4

RESPONDENT’S ARGUMENTS ............................................................................................................... 5

JUDGMENT OF THE CASE ....................................................................................................................... 6

CONCLUSION ............................................................................................................................................. 7
INTRODUCTION

Right to privacy is an essential component of right to life and personal liberty under Article 21.
Right of privacy may, apart from contract, also arise out of a particular specific relationship,
which may be commercial, matrimonial or even political. Right to privacy is not an absolute
right; it is subject to reasonable restrictions for prevention of crime, disorder or protection of
health or morals or protection of rights and freedom of others. Where there is a conflict between
two derived rights, the right which advances public morality and public interest prevails.

Prior to 2017, the Supreme Court's view on right to privacy in India was somewhat ambivalent.
In M.P Sharma v. Union of India1 an eight-judge bench of the Supreme Court held that there is
no right to privacy enshrined within the Constitution of India. The same view was given by a
constitutional bench of six judges in Kharak Singh vs The State Of U. P. & Others2.

However, there were decisions of smaller benches of the Supreme Court, such as, Gobind
Sharma v. Union of India (SC, 1975) and R. Rajagopal v. Union of India (SC, 1994), in which
the right to privacy has been held to be a constitutionally protected fundamental right and it was
in this milieu that the PUCL Case bears relevance.

In 1997, the Supreme Court of India (Supreme Court) pronounced its judgment in the case
of People's Union for Civil Liberties (PUCL) v. Union of India (SC, 1997) (PUCL Case)3,
which laid the groundwork for the right to privacy in the context of telephonic surveillance (i.e.
wiretaps) and constitutional freedoms.

On 24th August 2017, a nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy vs
Union of India4 passed a historic judgment affirming the constitutional right to privacy. It
declared privacy to be an integral component of Part III of the Constitution of India, which lays
down our fundamental rights, ranging from rights relating to equality (Articles 14 to 18);
freedom of speech and expression (Article 19(1)(a)); freedom of movement (Article 19(1)(d));
protection of life and personal liberty (Article 21) and others. These fundamental rights cannot

1
M.P Sharma v. Union of India, 1954 AIR 300.
2
Kharak Singh vs The State Of U. P. & Others, 1963 AIR 1295.
3
People's Union for Civil Liberties (PUCL) v. Union of India (PUCL Case), AIR 1997 SC 568.
4
Justice K.S. Puttaswamy vs Union of India, WP (C) 494/2012

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be given or taken away by law, and all laws and executive actions must abide by them.5

INSIGHTS ON THE CASE

NAME OF THE CASE Justice K. S. Puttaswamy (Retired)

WP (C) 494/2012
CITATION OF THE CASE

NAME OF THE COURT HON’BLE SUPREME COURT OF INDIA

PETITIONERS IN THE CASE Justice K. S. Puttaswamy (Retired)

Union of India; Planning Commission,

Government of India; Unique Identification
Authority of India; The State of Andhra
Pradesh; The State of Assam; The State of
Arunachal Pradesh; The State of Bihar; The
State of Chattisgarh; The State of Gujarat; The
State of Goa; The State of Haryana; The State
of Himachal; The State of Jharkhand; The
State of Jammu and Kashmirl The State of
RESPONDENTS IN THE CASE Karnataka; The State of Kerala; The State of
Madhya Pradesh; The State of Maharashtra;
The State of Manipur; The State of Meghalaya;
The State of Mizoram; The State of Nagaland;
The State of Orissa; The State of Punjab; The
State of Rajasthan; The State of Sikkim; The
State of Tamil Nadu; The State of Tripura; The
State of Uttarakhand; The State of Uttar
Pradesh; The State of West Bengal; The Union
Territory of Daman and Diu; The Union

5
Bhandari, V., Kak, A., Parsheera, S., & Rahman, F. (2017). An Analysis of Puttaswamy: The Supreme Court's
Privacy Verdict. IndraStra Global, 11, 1-5. https://nbn-resolving.org/urn:nbn:de:0168-ssoar-54766-2

2
 Territory of Dadra and Nagar Haveli; State of
National Capital Territory of Delhi; The Union
Territory of Andaman Nicobar Islands; The
Union Territory of Lakshadweep; The Union
Territory of Chandigarh; The Union Territory
of Puducherry.

D.Y. Chandrachud, Jadgish Singh Khehar,

Abdul Nazeer, Sharad Bobde, Jasti
HON’BLE BENCH
Chelameswar, Rohinton Nariman, Abhay
Sapre, Sanjay Kishan Kaul, Abhay Sapre

JUDGMENT PASSED ON 13TH AUGUST 1997

BACKGROUND

On 23rd August 2017, the Supreme Court unanimously recognised privacy as a fundamental
right guaranteed by the Constitution:

In 2012, Justice K S Puttaswamy, a retired judge of the High Court, filed a writ petition in the
Supreme Court challenging the constitutional validity of the Aadhaar scheme introduced by the
UPA Government.

On 11th August 2015, a Bench of three judges comprising Justices Chelameswar, Bobde, and C.
Nagappan passed an order that a Bench of appropriate strength must examine the correctness of
the decisions in M P Sharma v Satish Chandra, District Magistrate, Delhi, 1954 (8 Judge
Bench) and Kharak Singh v State of Uttar Pradesh, 1964 (6 Judge Bench). In particular it ordered
that the Court must decide whether we have a fundamental right to privacy.

This matter was first placed before a 5 Judge Bench headed by the then Chief Justice Khehar.
Subsequently, the matter was referred to a 9 Judge Bench on 18th July 2017. The Bench
comprised Chief Justice Khehar and Justices Jasti Chelameshwar, S.A. Bobde, DY
Chandrachud, Abdul Nazeer, Nariman, R.K. Agarwal, Abhay Manohar Sapre, and Sanjay
Kishan Kaul. Arguments began on 19th July 2017 and concluded on 2nd August 2017.

3
In a historic decision delivered on 24th August 2017, the Bench unanimously recognised a
fundamental right to privacy of every individual guaranteed by the Constitution, within Article
21 in particular and Part III on the whole. The decisions in M.P. Sharma and Kharak Singh were
overruled.

Since the 2017 judgment, the fundamental right to privacy has been cited as precedent in various
landmark judgments, such as the Navtej Johar and Joseph Shine judgments.

FACTS IN BRIEF

A retired High Court Judge K.S. Puttaswamy filed a petition in 2012 against the Union of India
before a nine-judge bench of the Supreme Court challenging the constitutionality of Aadhaar
because it is violating the right to privacy which had been established on reference from the
Constitution Bench to determine whether or not the right to privacy was guaranteed as an
independent fundamental right under the constitution of India following past decisions from
Supreme Court benches.6

ISSUES RAISED

 Whether the right to privacy is an intrinsic part of the right to life and personal liberty
under Article 21 and a part of the freedoms guaranteed by Part III of the Constitution.

 Whether the decision in M P Sharma v Satish Chandra, District Magistrate, Delhi is

correct in law?

 Whether the decision in Kharak Singh v State of Uttar Pradesh is correct in law?
PETITIONERS ARGUMENTS

It was argued from the side of the petitioner before the court is that the right to privacy is 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 and same is to be protected by the
constitution of India.
It was also put forward to evaluate the correctness of the decision noted in Karak Singh vs. The
state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violates the
Right to Privacy under Article 21 of the constitution.

6
“4-1 Verdict: Supreme Court Dismisses Pleas Seeking Aadhaar Ruling Review,” Hindustan Times, January 21,
2021, https://www.hindustantimes.com/india-news/41-verdict-supreme-court-dismisses-pleas-seeking-aadhaar-
ruling-review-101611189869910.html.

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RESPONDENT’S ARGUMENTS

It was argued from the side of the defendant that the constitution of India does not specifically
protect the Right to privacy and on this ground that the right of privacy was not guaranteed under
the Constitution, and hence Article 21 of the Indian Constitution (the right to life and personal
liberty) had no application in the case of both M. P. Sharma vs Satish Chandra and Karak
Singh vs. State of UP.

The court has discussed various issues regarding privacy to felicitate the clear analysis

1. Privacy Concerns Against state and Non-State Actors.

It was held that the claim of protection of privacy can be against both state and non- state
actors as the danger in the age of technological development can originate not only from
the state but from the non-state entities as well.

2. Informational Privacy (Not an absolute right).

It was held that Informational privacy is an aspect of the right to privacy. The right of an
individual to exercise control over his data and to be able to control his/her existence on
the internet and unauthorized use of such information may, therefore, lead to violation of
this right.

3. The ambit of Article 21 broadens by agreeing on opinions of the judges which recognized that
rights which have been held to flow out include the following:

 Food preferences and animal slaughter – Hinsa Virodhak Sangh v. Mirzapur Moti
Kuresh Jamat & Ors.

 Reproductive rights – medical termination of pregnancy – Suchita Srivastava & Anr vs.
Chandigarh Administration.

 Protection of personal information – privacy of health records – Mr. X v Hospital Z,1998

 The right to go abroad – Satwant Singh Sawhney v D Ramarathnam APO

New Delhi

 The right of prisoners against bar fetters – Charles Sobraj v Supdt. Central Jail.

 The right to legal aid – M H Hoskot v State of Maharashtra.

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  The right to a speedy trial – Hussainara Khatoon v Home Secretary, State of Bihar.

 The right against handcuffing – Prem Shankar Shukla v Delhi Administration.

 The right against custodial violence – Sheela Barse v State of Maharashtra.

 The right against public hanging – A G of India v Lachma Devi.

 Right to doctor’s assistance at government hospitals – Paramanand Katara v Union of

India.

 Right to shelter – Shantistar Builders v N K Totame.

 Right to a healthy environment – Virender Gaur v State of Haryana.

 Right to compensation for unlawful arrest – Rudal Sah v State of Bihar.

 Right to freedom from torture – Sunil Batra v Delhi Administration.

 Right to reputation – Umesh Kumar v State of Andhra Pradesh.

 Right to earn a livelihood – Olga Tellis v Bombay Municipal Corporation.

JUDGMENT OF THE CASE

A nine-judge bench of the Supreme Court of India passed a landmark judgment on 24th August
2017, upholding the fundamental right to privacy under Article 21 of the constitution of India.

Article 21 of the Constitution reads as:

“No person shall be deprived of his life or personal liberty except according to procedure
established by law”.

It is stated in the judgment that the privacy is to be an integral component of Part III of the Indian
Constitution, which lays down the fundamental rights of the citizens. The Supreme Court also
stated that the state must carefully balance the individual privacy and the legitimate aim, at any
cost as fundamental rights cannot be given or taken away by law, and all laws and acts must
abide by the constitution. The Court also declared that the right to privacy is not an absolute right
and any invasion of privacy by state or non-state actor must satisfy the triple test i.e.

1. Legitimate Aim – the aim of the provision shall not be illegal.

2. Proportionality – to determine as to what extent the law seems to cap privacy.

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 3. Legality – to determine the overall legality and exclusiveness of the law.

i. Decision that has been passed by all nine judges holds:

The decision in M P Sharma vs. Satish Chandra which holds that the right to privacy is
not protected by the Constitution of India stands over-ruled;

ii. The decision in Kharak Singh vs. State of UP to the degree that it holds that the right to
privacy is not protected by the Constitution also stands over-ruled;

iii. The right to privacy is protected as an intrinsic part of the right to life and personal liberty
under Article 21 of the constitution of India and as a part of the freedoms guaranteed by
Part III of the Constitution.

CONCLUSION

The Supreme Court of India has once again appeared as the sole protector of the constitution
creating a legal framework for privacy protections in India. The judgment covers all the issues
and established that privacy is a fundamental inalienable right, intrinsic to human dignity and
liberty under article 21 of the constitution of India. The judgment gives a way for the
decriminalization of homosexuality in India in Navtej Singh Johar v. Union of India (2018)
7
and abolishing the provisions of the crime of Adultery under in the case of Joseph Shine v.
Union of India (27 September 2018).8

7
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
8
Joseph Shine v. Union of India, WRIT PETITION (CRIMINAL) NO. 194 OF 2017