INTERPRETATION OF STATUTES PSDA ON

Case Comment- Justice K.S. Puttaswamy v Union of India

In Partial Fulfilment of the degree of Bachelors In Law

Submitted by - Submitted to-

Vageesha Dwivedi Ms Anjali Panwar

BA LLB 4C

05151103819

DELHI METROPOLITAN EDUCATION,

NOIDA
 Justice K.S. Puttaswamy v Union of India1

Introduction-
The dynamic nature of law always makes it adapt with the changing socio-economic, cultural
and legal aspects of society. One such example being the Right to Privacy. A dignified human
life can not be realised without the realisation of his privacy rights. For any given civilization
it's of utmost importance to recognize the individual’s right to privacy within the
constitutional framework. An internationally acclaimed right, privacy as a matter of fact not
only entails a dignified life but also makes it a two fold right- a negative right, where the state
has to restraint from interfering in an individual's private sphere, whereas also acting as a
positive right, obligating the state to protect the informational (data privacy) identity of the
individual. Right to privacy has long been at the heart of constitutional debates. While it was
only in this case that it was interpreted, inferred and fully realised as an intrinsic part of right
to life and personal liberty protected under Article 21 guaranteed by the Constitution.

In Supreme Court of India

AIR 2017 SC 4161, 10 SCC 1 (2017)

Petitioner
Justice K.S. Puttaswamy and Anr.

Respondent
Union of India

Date of Judgement
24/ 08/ 2017

Bench
J.S. Khehar (CJI), Abdul Nazeer (J), Rohinton Nariman (J), D.Y.Chandrachud (J), S.K. Kaul (J), Sharad
Bobde (J), Jasti Chelemeshwar (J), Abhay Sapre (J), A.K. Sikri (J)

Final Verdict
Right to Privacy recognised as a Fundamental Right

1
AIR 2017 SC 4161, 10 SCC 1 (2017)
 Facts of the case

In 2010, the government launched the Aadhaar scheme under which a central agency- UIDAI
( Unique Identification Authority of India) would manage and issue a 12 digit unique
identification number to every Indian. The adhaar card will be mandatory to avail various
governmental welfare schemes as this will become an identity of every resident citizen. To
issue this card, the demographic and biometric (face scan, fingerprint and retina scan) details
would be collected and stored in the govt server. It will serve as a single document of
identification. Other than availing schemes and services, banks, tele companies and financial
institutions can also use the number to verify and store details. Whereas it will also be
mandated while opening a bank account or filing tax return and even linked with mobile
numbers for verification.
This prompted Retd. Justice K.S. Puttaswamy filed a civil writ petition in 2012, challenging
the constitutional validity of aadhaar as a violation of right to privacy. In 2016, the Aadhaar
bill was tabled in parliament and later passed as a Money Bill.
To establish the constitutional validity of the aadhaar act, the court was first required to
determine if there exists a fundamental right to privacy in the constitution. The petition was
first heard by a divisional bench of SC, which to ensure “institutional integrity and judicial
discipline”, passed it to the constitutional bench of 5 judges, which again passed this even
larger bench of 9 judges referring to the constitutional question of right to privacy attached to
it.

Arguments

Petitioner's contentions
● To broadly categorise the arguments by petitioner in 2 categories:-
1. Privacy- The first objection of the petition was that the data extensively collected by
the govt gets stored in the central server. Now the safety parameters which will be
undertaken as per the govt, are ambiguous in nature and to the public. Neither there
exists any mechanism or a specific law of national data protection ( like something
similar to European Union General Data Protection Regulation2, which has set

2
REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the
protection of natural persons with regard to the processing of personal data and on the free movement of such
data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016
 standards globally to regulate the data protection law). This also makes the data
vulnerable as third parties can any time access or request for authentication. Lastly the
biometric and demographic information which gets stored by the govt can be used for
reasons unknown to citizens. The missing mechanism of check of power gives the
absolute authority to govt.
2. Welfare Schemes, Public Distribution services- The second contention was
surrounded on the curtailment of entitlement given by the state. Argument stated that
most of the welfare schemes are in promotion of social welfare and welfarism of
society, which already is enshrined either in DPSP or as the realisation of fundamental
rights of citizens. Adhaar act by making it a mandatory procedure to avail those
services, restrict the rights guaranteed by constitution.
● The petition argued on the basis of various previous judgments of SC regarding the
Right to Privacy. Although a smaller bench than MP Sharma and Kharak Singh, (both
of the judgement of the constitutional bench of SC has rejected the existence of right
to privacy as a fundamental right), the judgement in Maneka Gandhi v UOI3, Gobind
v State of MP4 or R. Rajagopal v State of Tamil Nadu5, wherein the court recognised
the right to privacy as a fundamental right reflecting in Article 14, 19 and 216, but
used a very limited approach. Further the petition mentioned the famous phone
tapping case PUCL v UOI7, in which the state surveillance was questioned. The court
held that tapping of telephonic conversation, without any security concern or
emergency or without following procedures established by law, infringes the
fundamental right to privacy. The threshold to meet the mark of public emergency or
security concern was set higher in this case. The petition also relied on the dissenting
opinion of Justice Subba Rao, in Kharak Singh.. The same minority opinion was later
acknowledged in this judgement as affirmative.

Respondent’s Argument-
1. In his opening argument, the Attorney General, appearing for the state, invalidated
the appeal of the petitioner by relying on the precedents of the judgement on M.P.

3
AIR 1978 SC 597, (1978) 1 SCC 248
4
AIR 1378, (1975) SCR (3) 946
5
AIR 264, (1994) SCC (6) 632
6
The Constitution of India, arts. 14, 19, 21.
7
AIR 1997 SC 568, (1997) 1 SCC 301
 Sharma v Satish Chandra, District Magistrate, Delhi8 and Kharak Singh v State of UP9.
These judgments had earlier established that there is no explicit mention of privacy as
part of fundamental right under Part III of the constitution, thereby can only be
realised as a limited or common law right.
2. Later the respondent went on to agree the origin and historical relevance of the
privacy and claimed that no such right existed earlier nor was this as substantial in
views of the constitutional makers, justifying the lack of explicit mention as a
fundamental right. It also went on to claim that the makers of the constitution
deliberately omitted privacy rights, weighing down its significance. Declaring privacy
an ambiguous concept, the respondent contended that parliament should be the sole
authority to legislate over the subject matter.

Issues raised
1. Whether or not there exists a right to privacy?
2. Is the right to privacy an intrinsic part of Article 21 of the constitution?
3. Is the decision of M.P Sharma and Kharak Singh constitutional?

Judgement and Analysis

A nine judge bench of the Supreme Court unanimously delivered the verdict and affirmed
that the right to privacy has always existed as an intrinsic part of an individual’s life and
personal liberty. An independent right protected under Article 21 of the constitution. The
court stated that the right to privacy is being distributed throughout part III in various ways
and mutatis mutandis- that for constructive enjoyment of other fundamental rights like- Right
to freedom, speech, association, personal liberty, guaranteed by constitution, recognition of
privacy as a fundamental right is necessary. An expansive and comparative interpretation was
used to infer the multi faceted aspects of privacy. The thematic core of the judgement was
based on the doctrine of living constitutionalism and the promotion of natural rights. Right to
privacy was interpreted as a natural and inalienable right. Court also referred to the
international right to privacy in its judgement. Universal Declaration of Human Right -
Article 1210 and International Covenant on Civil and Political Rights- Article 1711 was

8
AIR 300, 1954 SCR 1077
9
AIR 1295, 1964 SCR (1) 332
10
The Universal Declaration of Human Rights, 1948, art. 12.
11
The International Covenant on Civil and Political Rights, 1966, art. 17.
influential for the sake of judgement. Rejecting the common right claim, the court held that
the right to privacy is not a narrow right. It encompasses not only an individual's spatial
sphere, but also the decisional autonomy (family, marriage, procreation and child bearing
rights) as well as personal information (privacy of health records) and data privacy rights.
Right to privacy does not only mean the right to be ;left alone or right against physical
invasion but also incorporates the decision making, life choices, self determination and so on.
An individual holds his right to privacy even in the public realm. Further tracing the historical
relevance of constituent assembly debates, the court interpreted that very first attempt was
made to restrict state’s unreasonable surveillance when an amendment was moved to protect
individuals from arbitrary search-and-seizures, on the lines of American and Irish
constitution, by Mr. Kazi Syed Karimmudin12. Though the amendment got accepted by B.R.
Ambedkar as “a useful proposition against state’s unreasonableness”, yet couldn't find an
explicit mention under part III. The minority opinion of Justice Subba Roy made the court
reaffirm that privacy is inherent in personal liberty of each individual and ‘right to life’ under
article 21 is ‘not mere animal existence’, holding that if domiciliary visit was held a violation,
then the mannerism in which scope it was violation and what was it violating was also needed
to be expressed. Decision in Kharak Singh was overruled . With respect to the constitutional
validity of search and seizure in M.P Sharma, court held that though article 20(3)13 does not
put limit on search-and-seizures, analogous to the Fourth amendment14 of the US constitution,
but since the amendment is in itself non exhaustive related to privacy and the fact that the
constitution lacks comparable protection does not imply that there exists no inherent right to
privacy. Thereby, overruling its decision in the case. The court also rejected the respondent’s
claim that privacy is an “elitist construct”, and that each individual has the same equal right.
It was also interpreted that the right to privacy is reflected in the Preamble. The term dignity
in preamble obligates the state to respect the decisional autonomy and secure it to fullest of
its potential. Liberty, Fraternity, and Equality are to be read in juxtaposition so as to whole
realisation of the ambit of rights under part III of the constitution.
Right to privacy was recognized as a fundamental right, but the absolute nature and
restrictions were not forsaken. It was held that the right may be reasonably restricted by the
state according to procedure established by law. By using the Doctrine of Proportionality, the
court laid down a four fold test, inspired by the European Conventions on Human Rights

12
VII, CONSTITUENT ASSEMBLY DEBATES, 66. 11, 12, 13, 14.
13
The Constitution of India, art. 20(3).
14
U.S. Const. amend. IV, 1791, U.S. available at : https://constitution.congress.gov/constitution/amendment-4/
(last visited on June 12, 2023).
(Article 8)15. The test lays down four requirements which need to be met if a state in any
given scenario tries to restrict the right to privacy by way of an amendment, act or ordinance..
1. Legality - the restrictions should exist or provided by law
2. Legitimate goal/ need- the said restrictions should correspond to a necessity in a
democratic society seeking for a legitimate state aim.
3. Proportionality- A rational nexus should be present between the object and the
adopted mean by the state to achieve them.
4. Procedural Guarantees - If due to such state interference rights gets abused, then there
should be adequate procedural guarantees with the right holders.
With respect to the constitutionality of the aadhaar act, 2016 a five judge bench of SC on 26
of september, 2018, upheld the act to be constitutionally valid. The four fold proportionality
test laid down in the Puttaswamy judgement was applied. Certain provisions of the act were
struck down as unconstitutional or reframed. However the contention of the petitioner related
to the welfare scheme and state entitlement was rejected by upholding the validity of Section
716 of the Aadhaar act.
Conclusion
Aftermath of Judgement - Positive takeaway
The court’s interpretation of right to privacy being a negative as well as positive a right paved
way for other landmark judgement with respect to many forms of privacy rights and how it
can be realised to the fullest of its existence. Negative aspect of the right (restrain of
unreasonable interference in individual choices, decisional autonomy) was realised with
decriminalisation of Section 37717 of IPC. The right to sexual autonomy is a part of the right
to privacy, and was given recognition in Navtej Singh Johar v Union of India18. In another
landmark judgement of the court, adultery- Section 49719 of IPC got decriminalised. The
right to privacy being inherent to the dignity of an individual was held in Joseph Shine v
Union of India20. Whereas, with respect to inferring right to privacy being a positive right, the
court held informational privacy as a part of right to privacy and noted on the incumbent need
of data protection laws in India. The court left this on parliament to legislate.

15
European Convention on Human Rights, 1950, art. 8.
16
The Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, art. 7.
17
The Indian Penal Code, 1860 (Act 45 of 1860), s. 377.
18
AIR 2018 SC 4321, (2018) 10 SCC 1
19
The Indian Penal Code, 1860 (Act 45 of 1860), s. 497.
20
AIR 2018 SC 4898, (2019) 3 SCC 39