Project topic of Right

to Information &
Media Laws on the case
K.S PUTTASWAMY V. UNION OF INDIA

Submitted to: Submitted by:

Ms. Nehmat Name-Kapish
Teacher In-charge Roll no 258/19
UILS, Panjab University B.ComL.L.B
Chandigarh Sec-E 7th Sem
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 ACKNOWLEDGEMENT

I would like to express my gratitude towards Right to information and Media laws’ teacher In-
charge Ms. Nehmat, at the UILS, Panjab University, Chandigarh for giving me this Project on
the case K.S PUTTASWAMY V. UNION OF INDIA. I would also like to express my gratitude
towards my parents for always supporting and encouraging me. Further I am grateful to my
friends for helping and guiding me.

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 INDEX
1. Introduction 4

2 Other judgements 5-6

3 Facts 7-8
4 Issue 8
5 Arguments 8-10
6 Decision 10-13
7 Conclusion 14
8 Bibliography 15

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 INTRODUCTION
The right to privacy is one of these rights since the right to life in Article 21 is flexibly defined
to cover all parts of a person's existence that make their life more meaningful. The Supreme
Court ruled that Regulation 236 of the UP Police Regulations breached the Constitution
because it violated Article 21 of the Constitution in Kharak Singh v. the State of UP (1962),
which was the first case to address this issue. The Court ruled that the right to privacy is
intertwined with the right to preserve individual freedom and life. The court in this decision
equated personal freedom and privacy.

In Maneka Gandhi v. UOI (1978), the court established the triple test for any law restricting
individual freedom:

(1) A course of action must be prescribed;

(2) The method must pass the test of one or more Article 19-granted fundamental rights that
might be applicable in a particular circumstance.

(3) It must pass Article 14's scrutiny.

The legislation and method allowing for the invasion of one's privacy and right to personal
freedom must also be right, just, and fair and not capricious or harsh. It is now accepted that
the right to privacy is included in the right to life and liberty guaranteed by Article 21.

The right to life was considered to not be the embodiment of mere animal existence, but the
guarantee of a full and meaningful life. The simple idea that we are individuals first frequently
takes a back seat to being a part of society. Every person needs a private space for whichever
activity they choose (assuming here that it shall be legal). As a result, the state grants everyone
the freedom to enjoy those private moments. According to Clinton Rossiter, privacy could be
a unique form of reasonable independence that can be viewed as a test of securing autonomy
in at least some intimate and spiritual matters. The most unique experience a person can have
is this sense of independence. There, people live in complete freedom. Frequently, this is not a
right against the government, but against the planet.

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Judgements before KS Puttaswamy v. UOI on Right to Privacy

1) M.P. Sharma v. Satish Chandra (1954) 1

The right to privacy was the subject of this first case to address it, and the eight-judge
bench firmly decided that it is not a basic right.
The power of search and seizure is an overriding State authority for the protection of
social security and that power is necessarily regulated by law in any system of
jurisprudence. We have no justification to convert it into a completely different
fundamental right through some process of strained construction when
the Constitution makers have thought fit to subject such regulation to constitutional
limitations by recognition of a fundamental right to privacy, analogous to the Fourth
Amendment.

2) Kharak Singh v. State of U.P.(1964)

The right to privacy is not a guaranteed right under our Constitution, and thus the
attempt to track out a person’s whereabouts, which is only a way in which privacy is
invaded, is not a violation of a basic right guaranteed by Part III, according to a 4:2
majority of a 6-judge bench in the Kharak Singh case (1964).

To express the minority viewpoint, K. Subba Rao, J., and J.C. Shah, J., said in their
respective opinions that the right to personal liberty includes not just a right to be free
from limits placed on his movements, but he is also free from encroachments on his
private life. Although the right to privacy is not officially stated as a fundamental right
in our Constitution, it is a necessary component of human liberty. It was further
observed while defining the ‘right to personal liberty’ that it is a right of an individual
to be free from limits or encroachments on his person, whether those restrictions or

1
(1954) 1 SCR 1077

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 encroachments are directly imposed or indirectly brought about by calculated
methods.2

3) Gobind v. State of M.P. (1975)

According to the three-judge bench in this case, which held that the right to privacy is
not absolute, it is not necessary that surveillance by domiciliary visits would always be
an unreasonable restriction on the right of privacy, depending on the character and
antecedents of the person subject to surveillance, as well as the objects and the limitation
under which surveillance is conducted. Further, it was said that legislation imposing
reasonable restrictions upon it for the compelling interest of the state must be upheld as
legal since the right to privacy of movement cannot be absolute.3

2
1963 AIR 1295, 1964 SCR(1) 332
3
AIR 1975 SC 1378

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 FACTS OF THE CASE
Even after the Aadhaar scheme received statutory backing with the passage of the Act,
the Aadhaar (Authentication) Regulations, 2016, the PML (Maintenance of Records) Fifth
Amendment Rules, 2017, and all notifications issued under Section 7 of the Act, which made
Aadhaar mandatory for obtaining various benefits, have all been the subject of legal
challenges.
One of the main concerns levelled at the Aadhaar scheme and the Act was that they violated
the right to privacy. Along with the substantive challenge based on the right to privacy, it was
questioned whether the Act's enactment as a Money Bill was in accordance with Article
110.The Indian government started a scheme called "Unique Identification for BPL Families"
A committee was formed for the undertaking.
The Committee for the aforementioned project advised developing a database for Unique
identification. It was decided to divide the project into three parts. In January 2009, the
Planning Commission of India passed a notification on UIDAI (Unique Identification
Authority of India). In 2010, the National Identification Authority of India Bill was passed by
the Commission. Retired Justice K S Puttaswamy and Mr. Parvesh Sharma in November 2012
filed a PIL Writ Petition in the Supreme Court challenging the validity of Aadhaar.
The scheme was challenged as it was violative of Fundamental Rights. The scheme violated
the right to privacy under Article 21 of the Indian citizens. After filing this writ petition, a series
of orders were passed. The Aadhaar Act was passed in 2016. The petitioners then filed another
writ petition challenging the vires of the Act. This writ petition was then merged with the
previous one and was treated as one writ petition.

Jairam Ramesh who was the Former Union minister and Congress leader moved Supreme
Court in May 2017. He challenged the decision to treat the Aadhaar Bill as a money bill.

On 24th August 2017, the Supreme Court ruled that the right to privacy is a Fundamental Right
under Article 21 of the Indian Constitution. On 17th January 2018, the hearing of Aadhaar Case
was started in Supreme Court. The Supreme Court on 25th April 2018 questioned the Centre
on linking the Aadhaar with mobile. On 26th September 2018, the Supreme Court held Aadhaar
card to be valid but struck down certain provisions such as mandatory linking of Aadhaar with
mobile, bank accounts and school admissions. The question of whether privacy is a

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fundamental right first came up in 2015 before a three-judge Supreme Court panel that was
considering whether the Aadhaar system was constitutional. After that, the Attorney General
argued that despite the Supreme Court's recognition of the right to privacy in several rulings,
Part III of the Constitution did not safeguard this essential freedom because the larger Supreme
Court benches in the M.P. Sharma (8-judge bench) and Kharak Singh (6-judge bench) cases
refused to concur that the right to privacy was protected by the Constitution. Consequently,
this panel referred the matter to a five-judge bench in order to "ensure institutional integrity
and judicial discipline." The five-judge panel then referred the constitutional issue to a bench
of nine judges, who were even more qualified to make a final decision about the privacy right .

Issue

1) The main issue in this case was whether the Right to Privacy was a fundamental Right
under part III of the constitution?
2) Whether the Aadhaar Project violates the right to privacy of the citizens and is
unconstitutional based on this ground?

ARGUMENTS
Respondents
The Respondents mainly relied upon the judgments in the cases of M.P. Sharma, as well as the
case of Kharak Singh, which had observed that the Constitution did not specifically protect the
right to privacy. The judgments were pronounced by an eight Judge and a six Judge Bench
respectively, and the Respondents argued that they would therefore be binding over the
judgments of smaller benches given subsequently. The Respondents further argued that the
makers of the Constitution did not intend to make the right to privacy a fundamental right.
It was also rebutted by the respondents that the Aadhaar Act does not ask for any information
which can violate a person’s Right to Privacy. It was submitted by the respondents that the Act
barely asks for any personal information from the citizens which can enable State surveillance
on them. The respondents further stated that the demographic information which the Act seeks
to ask from the citizens include name, date of birth, gender, address, mobile number and email
address of the citizens. Providing mobile number and email address to the State was left on the
option of the citizens and these two are required only for transmitting relevant information to

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the AMH and for providing One Time Password (OTP) for their authentication. The
information which the Act seeks to receive from the citizens is in the public domain. It was
also stated by the respondents that the Act under Section 2(k) specifically provides that the
regulations cannot ask for the information like race, religion, caste, tribe, ethnicity, language,
income, records of entitlement or medical history from the citizens and hence, any sensitive
information can’t be asked from the citizens through this Act. In light of the Section stated
above the scope of obtaining any additional demographic information is very limited and even
the biometric information which the Act seeks to obtain from the citizens is limited to their
fingerprints and an iris scan. The context of this particular exclusion assures that the range of
providing further demographic information is fairly constrained. Such biometric data is
frequently collected globally in order to identify a person. The respondent's contention was that
the information that the Aadhaar Act intends to collect is non-intrusive identity information.

Petitioners
The submission of the Petitioners was that M.P. Sharma and Kharak Singh were founded on
principles expounded in A.K. Gopalan vs. State of Madras (1950 SCR 88). The Petitioners
argued that A.K. Gopalan, which construed each provision contained in the Chapter on
fundamental rights as embodying a distinct protection, was held not to be good law by an eleven
Judge Bench in Rustom Cavasji Cooper vs. Union of India ((1970) 1 SCC 248). Hence, the
Petitioners submitted that the basis of the two earlier decisions was not valid. It was also urged
that in the seven Judge Bench decision in Maneka Gandhi vs. Union of India ((1978) 1 SCC
248), the minority judgment of Justice Subba Rao in Kharak Singh was specifically approved
while the decision of the majority was overruled. In addition to this, other arguments made
during the hearing dealt with the scope of the right to privacy. It was contended that the Right
to Privacy of the citizens was being violated. Right to Privacy is an integral part of Article 21
of the Indian Constitution i.e. Right to life and liberty. The Act imposes restrictions that are not
provided under Article 19 as reasonable restrictions. If any restriction is imposed then it is
important that it satisfies the requirements of Article 14 and 19 of the Indian Constitution. It is
also important that the law which imposes such a restriction must be fair, just and reasonable.In
the present case, the restrictions which are imposed by the Government through the Aadhaar
Act do not fall under reasonable restrictions and are arbitrary and unreasonable. There isn’t any
reasonable classification as there is no nexus between the classification of society made by the

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Act and the objective which the Act strives to achieve. The information which was sought from
the citizens violated the integrity of the citizens. The object of the Act was not in nexus with
the information which was sought to be collected by the citizens. The Act also made a
classification of citizens based on religion. Classification based on religion did not only
discriminate citizens but also forced them to reveal their religion which is violative of Article
25 of the Indian Constitution. Further, the Act also made Aadhaar Cards compulsory for
availing certain benefits that were offered by the Government to the citizens under the Act. The
compulsion of Aadhaar Cards will also enable the Government to put the citizens under its
surveillance and this would amount to a violation of the Right to privacy under Article 21 of
the Constitution. Violation of the Right to privacy is a very serious violation of the Right to
life as it encroaches upon the life and dignity of the citizens which is the basic right guaranteed
under the Constitution. The Petitioners argued for a multi-dimensional model of privacy as a
fundamental right, while the Respondents stated that the right to privacy was an ambiguous
concept and could only be crystallized as a statutory and common law right.

The Petitioners argued that the Constitution would have to be read in line with the Preamble,
while keeping in mind that privacy was a natural right, and an international human right. The
Respondents advocated for a narrow approach which focused on the Constitution as the
repository of fundamental rights and the Parliament as the only body which had the powers to
modify the same.

Decision of the court

The Supreme Court declared that privacy is a distinct and independent basic right under Article
21 of the Constitution in six different rulings. The decision's core outlined a broad
understanding of the right to privacy, one that included decisions, choices, information, and
freedom rather than being restricted to physical invasion or a derivative right under Article 21.
It was determined that Part III of the Constitution's fundamental right to privacy was both
enforceable and comprehensive. The several opinions included specifics pertaining to the
right's scope. The Court overruled the judgments in M.P. Sharma, and Kharak Singh, insofar
as the latter held that the right to privacy was not a fundamental right. With respect to M.P.
Sharma, the Court held that the judgment was valid for maintaining that the Indian Constitution
did not contain any limit to the laws on search and seizure analogous to the Fourth Amendment
in the United States Constitution. However, the Court held that the Fourth Amendment was not

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an exhaustive concept of privacy and an absence of a comparable protection in the Constitution
did not imply that there was no inherent right to privacy in India at all – and therefore the
conclusion in M.P. Sharma was overruled. The Court rejected the insular view of personal
liberty (“ordered liberty”) adopted by Kharak Singh, which Justice D.Y. Chandrachud referred
to as the “silos” approach borrowed from A.K. Gopalan. The Court observed that this approach
of viewing fundamental rights in water-tight compartments was abrogated after Maneka
Gandhi. The Court further observed that he majority opinion in Kharak Singh suffered from an
internal contradiction, as there was no legal basis to have struck down domiciliary visits and
police surveillance on any ground other than privacy – a right which they referred to in theory
but held not to be a part of the Constitution. The Court also held that the decisions subsequent
to Kharak Singh upholding the right to privacy were to be read subject to the principles laid
down in the judgment.

The Court also analysed the affirmative case for whether the right to privacy was protected
under the right to life, personal liberty and the freedoms guaranteed under Part III of the
Constitution. The Bench established that privacy was “not an elitist construct”. It rejected the
argument of the Attorney General that the right to privacy must be forsaken in the interest of
welfare entitlements provided by the state.

Significantly, while holding that the right to privacy was not absolute in nature, the judgment
also gave an overview of the standard of judicial review that must be applied in cases of
intrusion by the State in the privacy of an individual. It held that the right to privacy may be
restricted where such invasion meets the three-fold requirement of

A. legality, which postulates the existence of law;

B. need, defined in terms of a legitimate state aim; and
C. proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them.
Justice S.K Kaul added a fourth prong to this test which mandated “procedural guarantees
against abuse of such interference”.

At the same time, Justice J. Chelameswar held that the standard of “compelling state interest”
was only to be used in privacy claims which deserve “strict scrutiny”. As for other privacy
claims, he held that the just, fair and reasonable standard under Article 21 would apply.
According to his judgment, the application of the “compelling state interest” standard would
depend on the context of the case.

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The Court also emphasised the fact that sexual orientation was an essential facet of privacy. It
further discussed the negative and positive content of the right to privacy, where the State was
not only restrained from committing an intrusion upon the right but was also obligated to take
necessary measures to protect the privacy of an individual.The judgment held informational
privacy to be a part of the right to privacy.

The Aadhaar Act was held to be valid by the Supreme Court. The Hon’ble Court stated that
sufficient security measures have been taken by the Government in order to keep the data safe
which the citizens have been asked to reveal for Aadhaar. A five-judge bench led by CJI Dipak
Misra decided the case. The Bench asked the Government to take measures to provide more
security in order to protect the data obtained by the people.

 It was also stated by the Court that the information which has been obtained by Aadhaar
should not be released to the commercial banks, payment banks, and e-wallet
companies.

 E-wallet companies like Paytm asked their customers to get their KYC done by using
their Aadhaar cards. It was held by the Court that such information of Aadhaar should
not be released to them.

 It was also stated by Bench that telecom companies cannot seek details of Aadhaar from
their customers when they buy a new sim card and even schools shall not ask students
to provide their Aadhaar number for appearing in board exams or for admissions.

 The Supreme Court upheld the validity of Aadhaar and made it mandatory for availing
the benefits and subsidies of the Government. T

he Act ensures that the benefits and subsidies of the Government are received by the people for
whom it is meant. The court held that Aadhaar card shall be made mandatory for availing the
welfare schemes, benefits, and subsidies that are provided by the Government as it empowers
the poor and ensures that the benefits and subsidies are received by the sections of society for
which it was meant. The Supreme Court held that children would not be denied the benefits of
any Government scheme if they do not have an Aadhaar card. The Bench of the Supreme Court
also struck down the national security exception under the Aadhaar Act.The Court also

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explained the difference between an identity card and Aadhaar. Aadhaar has a unique
identification and hence can’t be duplicated like other identity cards. Further, the Court also
stated that the objective of Aadhaar is to give identity and empower the poor of the society by
making sure that they are able to avail the benefits and subsidies which are provided by the
Government for them. Therefore, the Aadhaar has been made compulsory for availing the
Government welfare schemes.

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 CONCLUSION

Indian Constitution's article 21 holds that the right to privacy is a fundamental right, according
to the court. In this case, the decision made in the cases of M.P. Sharma and Kharak Singh was
overruled. Aadhar card cannot be made essential for linking with bank accounts or other
accounts, but Aadhar and Pan card linking can be made necessary for submitting income tax
returns. The petition's concerns were addressed, and the Hon'ble Court overturned frivolous
laws and gave other proposals careful consideration. An major component of the case involved
the right to privacy. On September 26, 2018, a five-judge bench of the Honorable Supreme
Court rendered a decision in favour of the respondents. The Court affirmed the legality of
Aadhaar after invalidating a number of Act provisions that were in conflict with the
Constitution and violated citizens' rights. The majority of the honourable Bench further noted
that sustaining the Aadhaar Act would not respect citizens' freedom of choice on whether to
obtain an Aadhaar card. Aadhaar will be required in order to get government benefits and
subsidies, therefore citizens won't have a choice in the matter. If a citizen is denied access to
these benefits because they lack an Aadhaar or have an authentication issue, their dignity may
have been violated. The Bench further stated that there is no constitutional justification for
linking Aadhaar and PAN cards, hence it is not important. Upholding of Aadhaar can possibly
result in the violation of the Right to Privacy even after striking down some provisions of the
act.

The Court explicitly disallowed the prospect of private entities using the authentication method
or of citizens being asked for their Aadhaar information in order to protect their right to privacy.
The Court's action to safeguard citizens' rights to privacy made it very evident that this right is
truly a fundamental one.

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 BIBLIOGRAPHY

Books:
 The Right to Information Act, 2005

Websites:
 https://blog.ipleaders.in/justice-k-s-puttaswamy-retd-and-anr-vs-union-of-
india/#Summary_of_facts( Last visited on 28th oct 2022)
 https://privacylibrary.ccgnlud.org/case/justice-ks-puttaswamy-ors-vs-union-of-india-
ors#:~:text=Case%20Brief&text=The%20nine%20Judge%20Bench%20in,of%20dign
ity%2C%20autonomy%20and%20liberty.( last visited on 27th oct 2022)
 https://globalfreedomofexpression.columbia.edu/cases/puttaswamy-v-india/(Last
visited on 28th oct 2022)
 https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-
ors-privacy/ (Last visited on 28th oct 2022)
 https://indiankanoon.org/doc/127517806/ (Last visited on 26th oct 2022)
 https://www.scobserver.in/cases/puttaswamy-v-union-of-india-fundamental-right-to-
privacy-case-background/ (Last visited on 28th oct 2022)

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