Indian Law Review

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Puttaswamy: Jury still out on some privacy

concerns?

Mariyam Kamil

To cite this article: Mariyam Kamil (2017) Puttaswamy: Jury still out on some privacy concerns?,
Indian Law Review, 1:2, 190-204, DOI: 10.1080/24730580.2017.1409055

To link to this article: https://doi.org/10.1080/24730580.2017.1409055

Published online: 15 Dec 2017.

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 INDIAN LAW REVIEW, 2017
VOL. 1, NO. 2, 190–204
https://doi.org/10.1080/24730580.2017.1409055

CASE NOTE

Puttaswamy: Jury still out on some privacy concerns?

Mariyam Kamil

ABSTRACT ARTICLE HISTORY

In KS Puttaswamy v Union of India, a nine-judge bench of the Received 26 October 2017
Indian Supreme Court considered whether there is a fundamental Accepted 21 November 2017
right to privacy in India. The Court unanimously answered this KEYWORDS
question in the affirmative through six concurring opinions. The Right to privacy; India;
decision is likely to have a sweeping impact for public law in India Supreme Court of India;
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in general, and for the right to privacy, in particular. This case note Puttaswamy; proportionality;
examines the implications of this decision for three specific privacy horizontality; Aadhaar
themes: the rationale for the right to privacy, standard(s) of judicial
review and horizontal application. The note concludes that there is
judicial convergence on the first theme, but unfortunately more
questions are raised than answered in respect of the other two.

Introduction
The invasion of privacy is of no consequence because privacy is not a fundamental right and
has no meaning under Article 21.1
– Attorney General for India,
August 2015

On 24 August 2017, almost 2 years later, a nine-judge bench of the Indian Supreme
Court unanimously and decisively rejected this claim.2 But what led the Attorney
General to make this bold claim? At the heart of the controversy was the “Aadhaar
scheme” – a biometric and demographic data collection programme run by the
Government of India. The validity of this scheme was challenged, among other
grounds, on the basis that it violates privacy. The Government’s response was to
challenge the very existence of the right. This was based on an apparent conflict in
the precedents. In particular, the Government relied on the eight-judge decision of the
Supreme Court in MP Sharma3 which had rejected privacy as a constitutional guarantee
in 1954. Subsequent decisions, many of which had expressly recognized the right to
privacy, were, it was argued, inconsistent with MP Sharma. The confusion was com-
pounded by the fact that in 1962, in Kharak Singh, six judges of the Supreme Court had
adopted an internally inconsistent stance on privacy. While in one part of the

CONTACT Mariyam Kamil mariyam.kamil@law.ox.ac.uk

DPhil candidate in law, University of Oxford. I am grateful to Professor Paul Craig, Krishnaprasad KV and the
anonymous reviewers for their comments. All errors are mine.
1
Nikhil Pahwa “‘Violation of privacy doesn’t mean anything because privacy is not a guaranteed right’ – GoI”
Medianama (New Delhi, 6 August 2015) <www.medianama.com/2015/08/223-privacy-india-aadhaar/> accessed
21 September 2017.
2
KS Puttaswamy v Union of India 2017 (10) SCALE 1.
3
MP Sharma v Satish Chandra AIR 1954 SC 300.
© 2017 Informa UK Limited, trading as Taylor & Francis Group
 INDIAN LAW REVIEW 191

judgement, passages from Wolf v Colorado4 favouring a right to privacy were cited with
approval, a subsequent passage in the judgement expressly rejected privacy as a con-
stitutional guarantee.
The matter initially came before a three-judge bench. Faced with inconsistent
precedents, the matter was referred to a constitution bench. The question for the
resultant nine-judge bench was this: what was “the ratio decidendi of M.P. Sharma
and Kharak Singh … and the jurisprudential correctness of the subsequent decisions of
this Court where the right to privacy … [was] either asserted or referred”.5 In essence,
this question required the Supreme Court to adjudicate whether a fundamental right to
privacy existed at all in India.
Without doubt, the judgement of the 9 judges – only the 10th in India’s history – will
be remembered as one of the most significant judicial pronouncements in the history of
the Indian Supreme Court. In its judgement, not only did the Court confirm the
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existence of a fundamental right of privacy but it also overruled its earlier, much-
criticized, emergency era decision in ADM Jabalpur.6 It further suggested in no
uncertain terms that the reasoning in NAZ7 may require reconsideration.
There is much to be written about the sweeping implications of this decision for
Indian constitutional law. This case note, however, will undertake a less ambitious task.
It will examine the judgement in Puttaswamy in the context of the fundamental right to
privacy in India. Within that context, the note will focus on three themes. Part A will
consider the Court’s articulation of the rationale for privacy. What kind of a right is
privacy? What interest(s) does it protect? Part B will examine whether the Court offers
any guidance as to the standards on the basis of which invasions of privacy must be
judged? Part C will examine a structural issue, namely, does the right to privacy in India
operate horizontally, or is it only enforceable against the State? Finally, Part D will offer
some observations in conclusion.

Part A: rationale
This section will examine the conception of the right to privacy in India. Particularly,
does the decision in Puttaswamy provide any guidance on what the rationale for the
right to privacy is?8 As Chandrachud J fittingly observed at the beginning of his
speech,9

The basic question whether privacy is a right protected under our Constitution requires an
understanding of what privacy means. For it is when we understand what interests or
entitlements privacy safeguards, that we can determine whether the Constitution protects
privacy.

4
338 US 25 (1949).
5
Referral order in KS Puttaswamy (Retd) v Union of India 2015 (8) SCALE 747 [13].
6
ADM Jabalpur v Shivkant Shukla (1976) 2 SCC 521. In this case, the Supreme Court accepted that the government could
suspend the right to habeas corpus during an emergency.
7
Suresh Kumar Koushal v NAZ Foundation AIR 2014 SC 563. Here, the Supreme Court upheld the constitutionality of a
provision that criminalizes sex between men.
8
There is an allied, equally important question about the definition of privacy. For the purposes of this note however, I
will confine myself to the question of rationale.
9
Puttaswamy (Footnote 2) [7].
 192 M. KAMIL

By way of methodology, part of the exercise in this section will be to place the Supreme
Court’s treatment of privacy in the broader context of the academic literature in this
area. Although this may seem ironic, the literature that rejects privacy, either entirely or
as an independent right, offers a suitable point of departure.
Consider, for example, the “reductionist” literature. Reductionists argue that privacy
is reducible to other allied rights such as rights over person or property.10 Therefore, it
is argued that privacy does not have its own unique value. Interestingly, Chandrachud J
responded to the reductionist reasoning. Particularly in response to the suggestion that
privacy is reducible to liberty, he said,11

The powerful counter argument to these criticisms is that while individuals possess
multiple liberties under the Constitution, read in isolation, many of them are not related
to the kinds of concerns that emerge in privacy issues. In this view, liberty is a concept
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which is broader than privacy and issues or claims relating to privacy are a sub-set of
claims to liberty.

To him, therefore, the claim that privacy is a category of liberty is not inconsistent with
recognizing its separate meaning and existence.
Another vantage point from which privacy has come under attack is feminism. Some
feminists have challenged privacy – and indeed, the broader notion of a public–private
divide – on the basis that it operates as a shield for discrimination against women in
private spaces.12 Here again, Chandrachud J defended privacy. He recommended taking
“the violation of the dignity of women in the domestic sphere seriously while at the
same time protecting the privacy entitlements of women grounded in the identity of
gender and liberty”.13
Having considered some objections, we now come to the central question: what
interest(s) justify the existence of the right to privacy? The academic literature offers
numerous answers. Broadly, there are two categories of rationales that have been
offered for the right to privacy – individual rationales (i.e. those that focus on the
individual whose privacy is protected) and systemic rationales (i.e. arguments that
legitimize privacy from the point of the view of the legal system as a whole).
Let us consider the individual rationales first. It has been argued that privacy works
as a shield against societal pressure.14 On this view, of which Shoeman is a proponent,
social or cultural norms constitute impediments to an individual’s right to self-
expression. The role of privacy is to “insulate people from inappropriate manifestations
of social pressures”.15 A second view justifies privacy on the basis of the idea of

10
See generally: Frederick Davis, “What do We Mean by ‘Right to Privacy’?” (1959) 4 South Dakota Law Review 1; Judith
Jarvis Thomson, “The Right to Privacy” in Ferdinand David Schoeman (ed) Philosophical Dimensions of Privacy: An
Anthology (CUP 1984).
11
Puttaswamy (Footnote 2) [140] (c).
12
For example, see, generally, Catharine A MacKinnon, Towards a Feminist Theory of the State (Harvard University Press
1989); Nadine Taub and Elizabeth M Schneider, “Women’s Subordination and the Role of Law” in David Kairys (ed)
The Politics of Law: A Progressive Critique (3rd edn, Basic Books 1998).
13
Puttaswamy (Footnote 2) [140] (d).
14
See, generally, Ferdinand David Schoeman, Privacy and Social Freedom (CUP 1992) 16; Jeffery L Johnson,
“Constitutional Privacy” (1994) 13 Law and Philosophy 161.
15
Schoeman (Footnote 14) 136.
 INDIAN LAW REVIEW 193

“personhood” or “inviolate personality”.16 Reiman, for instance, conceives privacy as

“protect[ing] the individual’s interest in becoming, being, and remaining a person”.17
However, one of the earliest accounts justifying a privacy interest was offered by
Bloustein and was based on individual dignity.18 On this account, protecting privacy is
an aspect of, and indeed, a precondition to guaranteeing a dignified existence. Starting
with Bloustein’s re-characterization of Dean Prosser’s19 work on privacy, dignitarian
conceptions of privacy have since garnered substantial scholarly backing.20 A fourth
justification of privacy is based on the protection of interpersonal relations.21 On this
view, privacy is an important precondition for a number of aspects that we value in
inter-personal relations, most importantly, intimacy.22 Finally, privacy has also been
justified by reference to the need to protect freedom of choice, or autonomy.23 To
Rössler, for instance, “the true realization of freedom, that is a life led autonomously, is
only possible in conditions where privacy is protected”.24
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In contrast to the individual rationales considered above, privacy has also often been
justified on the basis of the value it brings to the legal or political system as a whole.25
Consider, for example, the polity-based justification for privacy offered by Lever. She
argues26

[T]he justification of privacy rights is that they reflect the moral and political freedom and
equality of individuals. They pay tribute to the ability of individuals to define their
identities and interests in ways that are consistent with the legitimate claims of others,
and to seek forms of cooperation that answer to their different needs, capacities and
interests. By protecting the self-definition, personal associations and confidentiality of
individuals, a society can express and institutionalize its commitment to a politics that
treats the legitimate claims of individuals as a reason for collective action, and the self-
conceptions of individuals as the basis for defining the common good.

With that background, we can now turn to the question: which among these justifica-
tions did the Indian Supreme Court adopt? Although an exhaustive or conclusive
answer may be needlessly restrictive at this stage, it is fair to say that there is a clear
thread that runs through the Court’s reasoning: individual liberty. One may also take
the further step of noting that according to the judges, the fundamental right to privacy
16
See, generally, Jeffrey Reiman, “Privacy, Intimacy, and Personhood” (1976) 6 Philosophy and Public Affairs 26; Jean L
Cohen, “Redescribing Privacy: Identity, Difference, and the Abortion Controversy” (1992–93) 3 Columbia Journal of
Gender and Law 43.
17
Reiman (Footnote 16) 44.
18
Edward J Bloustein, “Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser” (1964) 39 New York
University Law Review 962.
19
William Prosser, “Privacy” (1960) 48 California Law Review 383.
20
For another example of a dignity based justification, see Anita Allen, Unpopular Privacy: What Must We Hide? (OUP
2011).
21
See, generally, Charles Fried, An Anatomy of Values: Problems of Personal and Social Choice (Harvard University Press
1970); Adam D Moore, “Privacy: Its Meaning and Value” (2003) 40 American Philosophical Quarterly 215; James
Rachels, “Why Privacy Is Important” (1975) 4 Philosophy and Public Affairs 323.
22
Fried (Footnote 21) 142.
23
Beate Rössler, The Value of Privacy (Rupert DV Glasgow tr, Polity Press 2005).
24
ibid 72.
25
For an analogous example in the context of justification for freedom of speech and expression, see John Gardner,
“Freedom of Expression” in Christopher McCrudden and Gerald Chambers (eds), Individual Rights and the Law in
Britain (Clarendon Press 1994).
26
Annabelle Lever, A Democratic Conception of Privacy (AuthorHouse 2013) 107–108. See also, Lenese Herbert, “Othello
Error: Facial Profiling, Privacy, and the Suppression of Dissent” (2007) 5 Ohio State Journal of Criminal Law 79, 130
(making the argument that facial screening at US airports will punish political dissent and therefore, breach privacy).
 194 M. KAMIL

protects individual liberty by guaranteeing protection to individual dignity and

autonomy.
Consider first Chandrachud J’s judgement. He spoke on behalf of himself and three
other judges. Clearly affirming a dignitarian conception of the right to privacy, he
said,27
The right to privacy is an element of human dignity. The sanctity of privacy lies in its
functional relationship with dignity. Privacy ensures that a human being can lead a life of
dignity by securing the inner recesses of the human personality from unwanted intrusion.

But why must dignity be protected? In response, Chandrachud J pointed to “intrinsic”

and “instrumental” reasons for protecting dignity.28 As an inherent entitlement and a
constitutionally protected interest, dignity carries an intrinsic value. The inseparability
of dignity and freedom also mean that there are important instrumental reasons for
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guaranteeing dignity.29
Consider now, Chandrachud J’s second prong, individual autonomy. He pointed out
the crucial relationship between privacy and individual autonomy30:
Privacy recognises the autonomy of the individual and the right of every person to make
essential choices which affect the course of life.

Particularly, in the context of privacy of choice, it is the interest in protection of

individual autonomy that motivates the right to privacy.
Unsurprisingly, Chandrachud J also noted the relationship between the notions of
liberty, dignity and autonomy. He said,31
Life and personal liberty are inalienable rights. These are rights which are inseparable from
a dignified human existence. The dignity of the individual, equality between human beings
and the quest for liberty are the foundational pillars of the Indian Constitution.

In sum, it appears that, to Chandrachud J, autonomy and dignity are intertwined ideas.
The broad concept of liberty includes within its sweep, autonomy and dignity, both of
which together inform the justification for the right to privacy in India.
Perhaps it is Bobde J who provided the clearest exposition of the interests that
privacy protects. To him, the two values with which privacy is most intimately con-
nected are “innate dignity and autonomy of man”.32 His justification of privacy, there-
fore, aligns closely with Chandrachud J. However, Bobde J went one step further. He
suggested that privacy is such an innate part of the fundamental rights chapter of the
Indian Constitution that other freedoms cannot be recognized without privacy.
Consider this passage for example33:
Privacy, thus, constitutes the basic, irreducible condition necessary for the exercise of
‘personal liberty’ and freedoms guaranteed by the Constitution. It is the inarticulate major
premise in Part III of the Constitution.

27
Puttaswamy (Footnote 2) [113].
28
ibid [169].
29
ibid.
30
ibid [113].
31
ibid [188] (A).
32
ibid [248].
33
ibid [261].
 INDIAN LAW REVIEW 195

Therefore, to Bobde J, privacy is not only an end in itself but also a means to achieving
something else, in this case, the exercise of other fundamental freedoms. Consider, for
example, Bobde J’s elucidation of how privacy acts as an enabler of the right to freedom
of speech and expression. To him, a condition of relative privacy is a precondition for
the effective exercise of the right to freedom of speech and expression, as is the case
with most other rights guaranteed by Article 19. Bobde J said34

Privacy in all its aspects constitutes the springboard for the exercise of the freedoms
guaranteed by Article 19(1). Freedom of speech and expression is always dependent on
the capacity to think, read and write in private and is often exercised in a state of privacy,
to the exclusion of those not intended to be spoken to or communicated with. A peaceful
assembly requires the exclusion of elements who may not be peaceful or who may have a
different agenda. The freedom to associate must necessarily be the freedom to associate
with those of one’s choice and those with common objectives.
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He pursued the same line of reasoning in the context of “dignity”35:

It is difficult to see how dignity – whose constitutional significance is acknowledged both

by the Preamble and by this Court in its exposition of Article 21, among other rights – can
be assured to the individual without privacy.

Here again, privacy was justified as a means to achieve dignity.

We turn now to Nariman J’s judgement, which is best understood as consisting of
two complementary strands of reasoning. On the one hand, his analysis mirrors that of
Chandrachud J, Kaul J and Bobde J. He relied on the twin notions of dignity and liberty
to make a case for the right to privacy. In his words,36

[I]t is clear that the concept of privacy is contained not merely in personal liberty, but also
in the dignity of the individual.

However, another strand of reasoning also runs through Nariman J’s analysis. One
finds this for example, in his identification of the “three aspects” of privacy in India:
“privacy that involves the person”, “informational privacy” and “the privacy of
choice”.37 Notably, far from confining himself to identifying these different variants
of privacy, Nariman J made an attempt at identifying the interests that underlie each
category. To him, privacy of choice is based on 'an individual’s autonomy';38 privacy of
the person relates to 'rights relatable to [one’s] physical body' and informational privacy
guarantees 'control over the dissemination of material that is personal to him'.39 In this
respect, Nariman J’s reasoning is representative of a body of privacy literature that relies
on classification of privacy as the basis for its justification.40

34
ibid [267].
35
ibid [266].
36
ibid [331].
37
ibid [364].
38
ibid (emphasis added).
39
ibid (emphasis added).
40
Daniel Solove, “A Taxonomy of Privacy” (2006) 154 University of Pennsylvania Law Review 477. However, the
argument that different categories of privacy protect different interests is best explained by Bostwick in the context
of his privacy of repose, sanctuary and intimate decision: see Gary Bostwick, “A Taxonomy of Privacy: Repose,
Sanctuary, and Intimate Decision” (1976) 64 California Law Review 1447.
 196 M. KAMIL

Sapre J’s judgement resonates with a small part of the reasoning by Bobde J. To him,
dignity is inconceivable without privacy. He discussed privacy as an inherent right
which is inseparable from the human being. He said,41

In my considered opinion, “right to privacy of any individual” is essentially a natural right,

which inheres in every human being by birth. Such right remains with the human being till
he/she breathes last [sic].

It is difficult to read much more into Sapre J’s conception of the right to privacy. It may
be possible to understand his justification as rooted within dignity, but this is admit-
tedly a stretched interpretation. Consider this passage, for instance42:

I, therefore, do not find any difficulty in tracing the “right to privacy” emanating from the
two expressions of the Preamble namely, “liberty of thought, expression, belief, faith and
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worship” and “Fraternity assuring the dignity of the individual”.

Now, consider the judgement of Chelameswar J. He noted that for the purposes of this
reference, the Court is only concerned with answering the question whether a funda-
mental right to privacy exists at all. “Definitional uncertainty” is, he said, no reason to
refrain from recognizing the right. However, a significant takeaway from Chelameswar
J’s speech is his characterization of fundamental rights as generally constructed on a
foundation of “liberty”. In his words,43

I am of the opinion that a better view of the whole scheme of the chapter on fundamental
rights is to look at each one of the guaranteed fundamental rights not as a series of isolated
points, but as a rational continuum of the legal concept of liberty i.e. freedom from all
substantial, arbitrary encroachments and purposeless restraints sought to be made by the
State.

He reiterated this point in the context of privacy. He said44:

The right to privacy is certainly one of the core freedoms which is to be defended. It is part
of liberty within the meaning of that expression in Article 21.

Finally, consider Kaul J’s reasoning. There are two interesting aspects about Kaul J’s
opinion. On the one hand, he aligned himself with the other judgements considered
above. For example, he said that “[p]rivacy … is nothing but a form of dignity, which
itself is a subset of liberty”.45 He also said that “The privacy of the home must protect
the family, marriage, procreation and sexual orientation which are all important aspects
of dignity”.46 This seems unexceptional.
Interestingly however, Kaul J also pursued a parallel line of reasoning that offered a
systemic rationale for the right to privacy.47 Tracing the value of privacy to the
maintenance of a democratic system, he said,48
41
Puttaswamy (Footnote 2 [402] (emphasis in original).
42
ibid [411].
43
ibid [221].
44
ibid [231].
45
ibid [497] (emphasis added).
46
ibid.
47
For a brief account of systemic rationale for privacy in general, see Footnote 26 above.
48
Puttaswamy (Footnote 2) [438].
 INDIAN LAW REVIEW 197

Knowledge about a person gives a power over that person. The personal data collected is
capable of effecting representations, influencing decision making processes and shaping
behaviour. It can be used as a tool to exercise control over us like the ‘big brother’ State
exercised. This can have a stultifying effect on the expression of dissent and difference of
opinion, which no democracy can afford.

Reiterating the instrumental value that privacy plays in maintaining a free democracy,
he said,49
The hallmark of freedom in a democracy is having the autonomy and control over our
lives which becomes impossible, if important decisions are made in secret without our
awareness or participation.

It appears, therefore, that in addition to affirming an individualistic rationale for the

right to privacy, Kaul J also adopted a systemic justification for privacy. That polity-
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based justification is based on the need to maintain a free democracy.

In sum, for the large part, the Supreme Court’s articulation of the rationale for
privacy appears to be based on the notion of individual liberty operationalized through
the ideas of autonomy and dignity. Although Kaul J substantially agreed with this view,
he offered an additional, systemic, justification for privacy.

Part B: standards of review

The previous section examined the Supreme Court’s attempt to justify the right to
privacy in India. This section will pursue a distinct albeit equally important enquiry: by
what standard(s) must the State’s justifications for any limitations on the right to
privacy be judged? Before making further progress on answering this question, it will
be necessary to briefly note the Court’s findings on the textual basis for the right to
privacy. Although privacy is centrally based on Article 21, it was held, it also derives
penumbral protection from other constitutional guarantees such as Article 19 and
Article 25. As Chandrachud J said,50
The freedoms under Article 19 can be fulfilled where the individual is entitled to decide
upon his or her preferences. Read in conjunction with Article 21, liberty enables the
individual to have a choice of preferences on various facets of life including what and how
one will eat, the way one will dress, the faith one will espouse and a myriad other matters
on which autonomy and self-determination require a choice to be made within the privacy
of the mind. The constitutional right to the freedom of religion under Article 25 has
implicit within it the ability to choose a faith and the freedom to express or not express
those choices to the world. These are some illustrations of the manner in which privacy
facilitates freedom and is intrinsic to the exercise of liberty.

In my view, the judgement in Puttaswamy offers three key takeaways on the applicable
standards of review. The first (and perhaps the least contentious) point is this: the
standard of “just, fair and reasonable”, as articulated by the Supreme Court in Maneka
Gandhi,51 operates as the bedrock against which claims of privacy violation will be
tested. Put differently, that is the bare minimum threshold that a State act must satisfy
49
ibid [472].
50
ibid [169].
51
Maneka Gandhi v Union of India (1978) 1 SCC 248.
 198 M. KAMIL

in order to be considered a legitimate curtailment of the right to privacy. As

Chandrachud J said,52

Any curtailment or deprivation of that right would have to take place under a regime of
law. The procedure established by law must be fair, just and reasonable.

Chelameswar J and Bobde J echoed this view. The former referred to the ubiquitous
nature of the “just, fair and reasonable” standard. It was said that it “[needed] no
elaboration”.53 Indeed, the application of this standard to privacy cases was also
specifically affirmed. Bobde J similarly affirmed the application of this standard in the
privacy context.54
That leads to a related, second enquiry. Do penumbral emanations of privacy that arise
from constitutional guarantees other than Article 21 influence the applicable standard of
review? Puttaswamy offers powerful support for the view that it does. Nariman J’s reason-
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ing is the most emphatic on this point. “When it comes to restrictions on [privacy]”, he said
“the drill of various Articles to which the right relates must be scrupulously followed”.55
Consider, for example, a privacy claim that is centrally based on Article 21 but raises in a
penumbral fashion, the right to freedom of speech and expression guaranteed by Article
19(1)(a). According to Nariman J, the Article 21 standard as well as the threshold laid down
under Article 19(2) will have to be met by the impugned State action. These thresholds
apply cumulatively. Bobde J concurred. He said,56

[I]nterference with [privacy] by the state must be tested against whichever one or more
Part III guarantees whose enjoyment is curtailed. As a result, privacy violations will usually
have to answer to tests in addition to the one applicable to Article 21.

Although Chelameswar J did not expressly reject this analysis, he appeared to be

reluctant to follow it entirely. According to him, “it is difficult if not impossible to
imagine that any standard of limitation, other than the one under Article 21
[applying]”57 to a claim based on privacy.
In my view, once it is accepted that privacy is not the exclusive domain of Article 21,
it is difficult to see why judicial review under Article 21 must exclude scrutiny under
other applicable constitutional provisions. Admittedly, in practice, it may be that
compliance with the Article 21 standard will, by itself, ensure fulfilment of the other
applicable thresholds. In the context of the privacy jurisprudence in India however, it
seems too early in the day to conclude that no contrary instances will arise. This is
especially so in the context of Article 19, which, unlike Article 21, imposes restrictions
on what may constitute a “legitimate state interest” by providing a closed list of
permitted aims.58
52
Puttaswamy (Footnote 2) [183].
53
ibid [236].
54
ibid [281].
55
ibid [369].
56
ibid [282].
57
ibid [235].
58
Constitution of Indian 1950, Art 19(2) reads “Nothing in sub clause (a) of clause (1) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.”
 INDIAN LAW REVIEW 199

Finally, does the Supreme Court in Puttaswamy authoritatively adopt “proportion-

ality” as the applicable standard of review for privacy infractions? As background, in the
context of the privacy claims in India, proportionality has rarely if ever been applied.59
Hitherto, most decisions have oscillated between the “reasonableness” standard60 and
the higher “compelling state interest” threshold.61 As Duara points out, even when the
term “proportionality” is employed in recent judicial decisions, the import of the
invocation of proportionality is usually different from the sense in which that term
has been employed in other jurisdictions around the world.62 In the light of this,
Chelameswar J’s analysis in Puttaswamy seems conventional. He adopted a variable
standard of review. He said,63

Only in privacy claims which deserve the strictest scrutiny is the standard of compelling
State interest to be used. As for others, the just, fair and reasonable standard under Article
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21 will apply.

Further, he also noted that which among these two alternatives was applicable must
depend on the “context of concrete cases”.64 Clearly however, to him, “compelling state
interest” and “reasonableness” were the two available alternatives.
Kaul J’s analysis is more radical. He seems to have adopted the view that the
standard of review for privacy violations is “proportionality” – a standard commonly
adopted by many jurisdictions including member states of the European Union. Before
proceeding further, it is imperative to understand what proportionality review entails.
Proportionality consists of four enquiries: (a) Is the State pursuing a legitimate
purpose? (b) Is there a rational nexus between that purpose and the infringing act?
(c) Can another, less intrusive measure be used to achieve the State purpose? and (d)
Finally, is the infringement of the right too great in comparison to the public purpose
that is sought to be achieved.65 It is this balancing exercise that is often considered to be
characteristic of proportionality. Hereafter, I will refer to this component as the
“balancing requirement”. Essentially, the balancing requirement asks the Court to
weigh two values against each other. At a broad level, the question is “when a statute’s
benefit to one right or public good is proportionate to its detriment to another right or
public good”.66 As Khaitan puts it,67

On the one hand, the court should ask itself how important is the right in question and
how seriously will the impugned measure restrict it. On the other hand, the importance of
the state interest in question needs to be examined, along with asking how effectively and
to what degree this interest will be achieved by the impugned measure. So, if an important

59
For an example of a case that hints this possibility, see Anuj Garg v Hotel Association of India AIR 2008 SC 663.
60
See, for instance, District Registrar & Collector, Hyderabad v Canara Bank AIR 2005 SC 186; PR Metrani v Commissioner
of Income Tax, Bangalore AIR 2007 SC 386.
61
See, for instance, Selvi v State of Karnataka AIR 2010 SC 1974; Suchita Srivastava v Chandigarh Administration AIR
2010 SC 235.
62
Juliette G Duara, Gender Justice and Proportionality in India: Comparative Perspectives (Routledge 2017) ch 7.
63
Puttaswamy (Footnote 2) [236].
64
ibid.
65
Timothy Endicott, “Proportionality and Incommensurability” in Grant Huscroft and Bradley W Miller (eds),
Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014).
66
Duara (Footnote 62) ch 4.
67
Tarunabh Khaitan, “Beyond Reasonableness – A Rigorous Standard of Review for Article 15 Infringement” (2008) 50
Journal of the Indian Law Institute 177, 184–185.
 200 M. KAMIL

right is only slightly restricted towards achieving an important state interest that is
substantially furthered, on balance, the impugned measure should be permissible.

In Puttaswamy, referring specifically to EU authorities that affirm the requirement of

proportionality, Kaul J appears to have adopted this standard entirely.68
So far, we have seen that Chelameswar J and Kaul J have adopted differing
approaches on the standard of review point. Where does Chandrachud J’s judgement
(on behalf of himself and three other judges) fit into this scheme? That is the crucial
question. If Chandrachud J agreed with Kaul J on this point, then there is majority
support for proportionality. Indeed, in one passage, Chandrachud J does appear to
adopt this stance. At [180], he said,
Proportionality is an essential facet of the guarantee against arbitrary state action because it
ensures that the nature and quality of the encroachment on the right is not dispropor-
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tionate to the purpose of the law.

I will refer to this as Proposition 1. Read in isolation, Proposition 1 appears to be an

affirmation of the balancing component of proportionality. However, let us now read
Proposition 1 in context. At [180], Chandrachud J helds69:
[T]he state must nevertheless put into place a robust regime that ensures the fulfilment of a
three-fold requirement …. The first requirement that there must be a law in existence to
justify an encroachment on privacy is an express requirement of Article 21 …. Second, the
requirement of a need, in terms of a legitimate state aim, ensures that the nature and
content of the law which imposes the restriction falls within the zone of reasonableness
mandated by Article 14, which is a guarantee against arbitrary state action …. The third
requirement ensures that the means which are adopted by the legislature are proportional
to the object and needs sought to be fulfilled by the law. Proportionality is an essential
facet of the guarantee against arbitrary state action because it ensures that the nature and
quality of the encroachment on the right is not disproportionate to the purpose of the law.

In the sentence immediately preceding Proposition 1, Chandrachud J spoke of the need

for proportionality between the object sought to be achieved by the law and the means
adopted to achieve the object. However, this is not the sense in which proportionality is
used by the balancing requirement. The balancing requirement concerns proportion-
ality between the importance and extent of infringement of a right, and the counter-
vailing public benefit that will accrue from such infringement. Furthermore, the idea
that the means adopted by the State must go no further than what is necessary to
achieve the object sought to be achieved, is an inherent component of reasonableness
review. In Proposition 1 therefore, was Chandrachud J merely referring to the need for
proportionality between means and ends? The answer remains unclear.
Unfortunately, the confusion is compounded by Chandrachud J’s summary of his
conclusions. There, he said70:
An invasion of life or personal liberty must meet the three-fold requirement of (i) legality,
which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim;
and (iii) proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.

68
Puttaswamy (Footnote 2) [492].
69
ibid [180] (emphasis added).
70
ibid “Conclusions” [188] (H).
 INDIAN LAW REVIEW 201

In this passage, Chandrachud J employed the term proportionality to denote nothing

more than a “rational nexus” between the State’s objects and means employed to
achieve them. Surely, a State act that lacks a rational nexus between objects and
means is bound to fail the reasonableness review. Thus, it is unclear what the propor-
tionality analysis is contributing to the conventional reasonableness review.
In sum, the judgement in Puttaswamy offers clear support for two propositions: (a)
the standard of “just, fair and reasonable” is the minimum threshold against which
privacy infractions will be tested; (b) if a State act infringes an aspect of the right to
privacy also protected under an additional article (such as informational privacy under
Article 19 or religious privacy under Article 25), then the act will need to be tested
cumulatively under both Articles. On a third proposition i.e. whether proportionality is
now the appropriate benchmark against which privacy infractions must be tested,
Puttaswamy offers no clear answers. It is fair to presume, however, that the judgements
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indicate a greater judicial appetite for a standard of review that is higher than the
reasonableness review.

Part C: horizontality
This section will examine whether there is any support in Puttaswamy for horizontal
application of the constitutional right to privacy in India. By way of background, in this
context, horizontal application refers to the application of the constitutional right to
privacy as between two private parties. For most rights guaranteed under Part III,71 it is
clear that they are conditioned to operate as safeguards of citizens’ rights against the
State.72
But why must horizontal application matter? There are at least two topical reasons.
First, if privacy does operate as a horizontal right, it is likely that it will become an
important basis on which intrusions into personal information will be sought to be
curbed. For example, do unauthorized biographies violate the right to privacy of the
subject?73 The answer depends on whether privacy operates horizontally. Second,
challenges to social media policies, of which there is one pending example in India,74
also depend on horizontal application of privacy.
It is important to note that in Puttaswamy, there is no majority view supporting
horizontal application of the right to privacy. To assess the Court’s attitude towards
privacy as a horizontal right therefore, one must piece together hints of the Court’s
reasoning that are scattered across the separate opinions.
For example, Chandrachud J, speaking on behalf of himself and three other judges,
referred to privacy against “non-state actors”. However, he did so narrowly, and in the
context of a discussion about data protection. Even there, he ultimately chose to leave
this difficult question to the legislature. He said,75

71
With the exception of Art 15(2), Art 17 and Arts 23 and 24.
72
P D Shamdasani v Central Bank of India AIR 1952 SC 59; Vidya Verma v Shiv Narain Verma AIR 1956 SC 108.
73
For an example of a claim of this kind, see R Rajagopal v State of Tamil Nadu AIR 1995 SC 254.
74
Karmanya Singh Sareen v WhatsApp Inc, Facebook Inc SLP(C) No 000804 of 2017 (pending).
75
Puttaswamy (Footnote 2) [190].
 202 M. KAMIL

The dangers to privacy in an age of information can originate not only from the state but
from non-state actors as well. We commend to the Union Government the need to
examine and put into place a robust regime for data protection.

Chelameswar J, in comparison, adopted a more measured approach. He noted that

although claims for protecting privacy interests can arise against State as well as non-
State entities, it is plausible that these claims arise from different interests and, conse-
quently, demand different methods of protection.76 Further, he said,77

Cases arose in various jurisdictions in the context of privacy interests based on (i)
Common Law; (ii) statutory recognition; and (iii) constitutionally protected claims of
the right of privacy.

However, on balance, he took the view that whether and the extent to which privacy
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protection is available against non-State entities must remain beyond the scope of the
reference.
We now come to two judgements that adopt radically opposing positions on this
issue. First, Bobde J’s judgement. He offers a clear analysis on horizontality. Firmly
rejecting horizontal application of the fundamental right to privacy, he highlighted the
distinction between the common law right to privacy and the fundamental right. But he
also indicated that the “nature and content” of the right remained the same in both
forms.78 It is only “the incidence of the duty to respect the right and … the forum in
which a failure to do so can be redressed” that are distinct.79 This claim is interesting
but untested. This is especially so since there is limited guidance to be had from the
precedents as to what the content of the “common law right” is. In any case, Bobde J’s
position on this issue appears to be tolerably clear. In his words,80

Where the interference with a recognized interest is by the state or any other like entity
recognized by Article 12, a claim for the violation of a fundamental right would lie. Where
the author of an identical interference is a non-state actor, an action at common law would
lie in an ordinary court.

At the other end of the spectrum is Kaul J’s separate opinion. In a discussion on privacy
and technology, he began in much the same way as Chandrachud J, stating that
recognizing and enforcing privacy against non-State actors requires intervention by
the legislature.81 He then went on to explain the importance of having regulations over
data collection including against the State and non-State actors.
His final analysis, however, seems to come down in favour of direct horizontal
application of privacy. He said,82

The right of privacy is a fundamental right. It is a right which protects the inner sphere of
the individual from interference from both State, and non-State actors and allows the
individuals to make autonomous life choices.

76
ibid [223].
77
ibid.
78
ibid [253].
79
ibid.
80
ibid.
81
ibid [431].
82
ibid [496] (emphasis added).
 INDIAN LAW REVIEW 203

This paragraph is interesting for two reasons. First, this passage affirms direct horizon-
tal application of privacy. Second, and more remarkably, in this passage, Kaul J appears
to expand the role of non-State infringement of privacy not just to the “inner sphere” of
a person but also to his “autonomous life choices”. Clearly, therefore, Kaul J’s concep-
tion of horizontal application of the fundamental right to privacy extends beyond the
realm of technology and data protection. Importantly, Kaul J also categorically noted
that it is the fundamental right (i.e. the constitutional guarantee of privacy) which offers
protection against interference by State and non-State actors. This makes it difficult to
explain away this passage as relating to the common law right of privacy. In sum, Kaul J
clearly affirmed horizontality of the constitutional right of privacy.
To conclude on this point, among the judgements in Puttaswamy, Kaul J and Bobde
J appear to occupy two ends of the spectrum. Chandrachud J and Chelameswar J in
contrast offered limited observations on this point. Unfortunately, as a consequence, the
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implications of the Supreme Court’s decision on the horizontal application of the

constitutional right to privacy remain unclear for now.
Another facet of privacy that the Supreme Court has left unconsidered is the
possibility of indirect horizontal application. Indirect horizontal application arises
when the Court interprets statutory or common law rights in the light of constitutional
safeguards.83 The possibility of indirect horizontal application of the right to privacy
raises interesting questions about the interaction between the constitutional and the
common law right to privacy. Indeed, if indirect horizontal application were to be
affirmed in India, it may allow the development of the common law right to privacy to
be conditioned by the constitutional safeguard.84 This is particularly relevant in the
context of the enactment of data protection laws, a step that the Court has recom-
mended. For example, is there any scope for the argument that these legislations ought
to be interpreted in the light of the constitutional guarantee of privacy? Or will the
Court conclude, as it did in Zoroastrian Housing that the meaning of the statutory
words must be found “within the four corners of the Act”?85 For now, these questions
remain unanswered.

Part D: conclusion
For years to come, Puttaswamy will be the starting point for discussions of the
fundamental right to privacy in India. Although strictly, the reference questions were
confined to the existence of the fundamental right to privacy in India, in six separate
judgements, the Supreme Court considered a number of issues relating to the structure,
scope and contours of this right. The six judgements offer a rich source from which
future Courts can draw useful guidance. However, on occasion, the plurality of opi-
nions tends to offer more questions than answers.
83
For a discussion of indirect horizontal application in India, see Ashish Chugh, “Fundamental Rights – Vertical or
Horizontal?” (2005) 7 Supreme Court Cases Journal 9; Sudhir Krishnaswamy, “Horizontal Application of Fundamental
Rights and State Action in India” in C Raj Kumar and K Chockalingam (eds), Human Rights, Justice and Constitutional
Empowerment (2nd edn, Oxford University Press 2010).
84
Nicholas Bamforth, “The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies” (1999) 58
Cambridge Law Journal 159, 168–170.
85
Zoroastrian Co-operative Housing Society v District Registrar, Co-operative Societies AIR 2005 SC 2306 [29].
 204 M. KAMIL

In this note, it was suggested that there is remarkable convergence among the judges
on an issue that one would least expect such agreement on: the rationale for the right to
privacy in India. There is overwhelming support in the judgement for a liberal con-
ception of privacy based centrally on the ideas of autonomy and dignity. However, on
the two other issues that this note was concerned with, disagreements outweigh con-
vergence. On both standards of review, and on the horizontal application of the right to
privacy, the judgement offers no majority view. Sooner rather than later, the task of
ironing out these vexed questions will have to occupy the Supreme Court’s attention.
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