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Right to Privacy

Justice K S Puttaswamy v Union on India (2017)

Procedural History
• The Aadhaar card scheme of the Union government was
challenged on the ground that it infringes the right to privacy
• A question arose whether the right to privacy is a fundamental
right under the Indian Constitution?
• There was some conflicting case law on this point which a 3
member bench could not decide in view of M P Sharma (eight
judges) and Kharak Singh (six judges)
• The matter was then referred to a larger bench for determining
whether the right to privacy does exist under the Indian
Constitution i.e. were M P Sharma and Kharak Singh correct in
not recognizing the right to privacy as a fundamental right?
Precedential Ambiguity - I
• In M P Sharma (1954), the question was whether an improper search
and seizure operation undertaken against a a company and its
directors violates the constitutional bar against testimonial compulsion
u/ Article 20(3)?
• Court drew a distinction between a “notice to produce” which is
addressed to the party concerned; the production whereof “constitutes a
testimonial act by him” whereas a search warrant “is addressed to an
officer of the Government” and as such are not acts of the “occupier of
the search premises” but are “acts of another to which he is obliged to
• Importantly, an 8-member bench of the SC observed:
“A power of search and seizure is in any system of jurisprudence an overriding power
of the State for the protection of social security and that power is necessarily
regulated by law. When the constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a fundamental right to
privacy, analogous to the Fourth Amendment, we have no justification to import it,
into a totally different fundamental right”
Precedential Ambiguity - II
• In Kharak Singh (1964), Kharak Singh was released for want of evidence but
under Regulation 228 of Chapter XX of the UP Police Regulations, police
compiled a history sheet against him as he was a criminal under surveillance.
surveillance and in particular Regulation 236 which allowed:
(a) secret picketing of the house or approaches to houses of suspects
(b) Domiciliary visits at night
(c) Thorough periodical inquiries by officers not below the rank of sub-inspector into
repute, habits, associations, income, expenses and occupation
(d) The reporting by constables and chaukidars of movements and absences from home

• The SC in a 4:2 decision strikes down Regulation 236(b) on the grounds that
“an unauthorized intrusion into a person’s home and the disturbance caused
to him thereby, is as it were the violation of a common law right of a man an
ultimate essential of ordered liberty” … the SC then refers to Seymayne’s case
(1604) known for expounding the castle doctrine and held that “it embodies an
abiding principle which transcends mere protection of property rights and
expounds a concept of personal liberty”
Precedential Ambiguity - III
• The majority then holds as for the other provisions of Regulation 236 that “the
right of privacy is not a guaranteed right under our Constitution and
therefore the attempt to ascertain the movements of an individual which is
merely a manner in which privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III”
• Subba Rao, J dissent: rights have overlapping areas and even though the
Cons. does not have an express right to privacy, “the said right is an essential
ingredient of ordered liberty”
• Kharak Singh is followed by Gobind (1994) in which a 3 member bench
considers a challenge to Police Regulations as follows:
“There can be no doubt that the makers of our Constitution wanted to ensure conditions
favorable to the pursuit of happiness … and therefore, they must be deemed to have
conferred upon the individual as against the government a sphere where he should be let
• In Gobind, the SC appears to have “proceeded on the assumption that if the
right to privacy is protected under the Constitution, it is a part of ordered
liberty” and is to be developed on a case-case basis
Precedential Ambiguity - IV
• Malak Singh: police surveillance not • P R Metrani v Commissioner of Income
unlawful if it is for the purpose of Tax: provisions of Income Tax 1961
preventing crime construed striclty as they constitute a
• Malkani: targeted and specific nature of “serious intrusion into the privacy of a
wiretapping upheld citizen”
• Suchita Srivastava: autonomy of a
• Mr X v Hospital Z: public disclosure of woman and control over her body i.e.
true facts can violate right to privacy reproductive choices should be respected
when doctor breaches confidentiality
• PUCL case: wiretapping infringes right to • Selvi: narco-analysis, polygraph test and
privacy unless permitted by procedure Brain Electrical Activation Profile held to
established by law violate 20(3) when involuntary
• Sharda v Dharmpal: involuntary • Ram Jethmalani: revelation of details of
subjection to medical examination bank account of individuals w/o
establishment of a prima facie ground of
• Canara Bank: power of Collector under wrongdoing violates right to privacy
Stamp Act to inspect any document, • Manoj Narula: the doctrine of
register, books and records etc. examined constitutional implications
Getting Rid of Precedent
• SC summary: “MP Sharma need not have answered the question, Kharak Singh dealt
with it in a somewhat inconsistent formulation while Gobind rested on assumption”
• MP Sharma
• The observation was stray and was made without examnining whether a constitutional right to
privacy is protected by other provisions contained in the fundamental right
• Kharak Singh
• Part I of Kharak Singh is inconsistent with Part II
• Kharak Singh regards sanctity of the home and the protection against unauthorized intrusion
an integral element of ordered liberty which is comprised in personal liberty guaranteed by
Article 21
• Interpretive Devices
• Silos v Overlapping: Gopalan (1950) which held that rights in Part III to be read as (rights were
mutually exclusive) has now been displaced by R.C Cooper (1970) and Maneka Gandhi (1978)
which supplies a new interpretative principle: rights are overlapping
• Constitutional Implications: M P Sharma “also predates the practice of the judicial enumeration
of rights implicit in a guarantee instantiated in the constitutional text”
• The SC held that “following Maneka, the established doctrine is that personal liberty
in Article 21 covers a variety of rights, some of which have been raised to the status of
distinct fundamental rights and given additional protection under Article 19”.
Union’s Defense
• No fundamental right to privacy recognized by the text
• It is implied in other rights .. “it’s the necessary CP to the enjoyment of any of the
guarantees in Part III” i.e. it is inherent in the concept of liberty and dignity
• “privacy is a a right or condition, logically presupposed by rights expressly recorded in
the constitutional text, if they are to make sense”
• The Constitution is a living document & originalism be rejected
• Privacy is already dealt with by other rights (constitutional & at common law)
• SC responded by saying that these ‘other rights’ (dignity and liberty) cannot
adequately protect the right to privacy
• Difference between common law law vs. fundamental rights
• Privacy is an inchoate concept not capable of demarcation
• SC responded “definitional uncertainty is no reason to not recognize the existence of the
right of privacy”
• Founding fathers expressly rejected the right to privacy
• SC responded by saying that the right to privacy which was dropped was only in “two
specific areas namely correspondence and searches and seizures” and thus one can not
infer that the framers were rejecting the “notion of privacy as integral element of
liberty and freedoms guaranteed” by the Constitution
Nature of Privacy
• Privacy has intrinsic and instrumental value: attaches to persons not
• Privacy is intrinsic to “liberty” & is an “element of human dignity” which
unites all other fundamental rights
• It has both an intrinsic value & instrumental value
• The SC recognized: (1) privacy involving person, (2) informational privacy,
and (3) privacy of choice
• informational privacy
• Protection of Identity vs. Protection of Autonomy (consent based disclosure)
• Difference between anonymity and privacy e.g. health records: anonymity (disclosure permissibly
made w/o disclosing identity vs. privacy (unauthorized disclosure)
• The SC held that “privacy includes at its core preservation of personal
intimacies, the sanctity of family life, marriage, procreation, the home and
sexual orientation. Privacy also connotes a right to be left alone. Privacy
safeguards individual autonomy and recognizes the ability of the individual to
control vital aspects of his or her life. Personal choices governing a way of life
are intrinsic to privacy”
Substantive Due Process
• Article 21
“no person shall be deprived of his life or personal liberty except according to procedure established
by law”
• If privacy is part of liberty then this means a law which provides a procedure to do so
is sufficient to take away the right of privacy but SC held no, the requirement of a
procedure established by law is in fact conditioned by the notion of SDP
• Recall: in Goplan, majority held that all which was needed was procedure established by law
• But famous dissent of Fazil Ali J which imports substantive requirements such that process
should be “fair, just and reasonable procedure established by valid law”
• In this case, SC held that “quality of reasonableness does not attach only to the content
of the procedure which the law prescribes with reference to Article 21 but to the content
of the law itself. In other words, the requirement of Article 21 is not fulfilled only by
the enactment of fair and reasonable procedure in the law and a law which does so
may yet be susceptible to challenge on the ground that its content does not accord with
the requirements of a valid law. The law is open to substantive challenge on the
ground that it violates the fundamental right”
• In other words, Article 14 infuses and informs requirements of Article 21 …. “once
Article 14 has a connect with Article 21, norms of fairness and reasonableness would
apply not only to the procedure but to the law as well”
Different Standards of Review
• Per D Y Chandrachud, J an encroachment on privacy must meet
the test of:
• legality: there is a law justifying encroachment on privacy
• need: the law services a legitimate state aim i.e. the scope of law falls
within the zone of reasonable mandated by Article 14
• proportionality: means adopted are proportional to the end
• Per Chelameswar, J an encroachment on privacy is subject to:
• the just, fair and reasonable standard of review u/ Article 21; &
• & in other privacy claims, standard of “compelling state interest”
• Per S.A. Bobde J, an encroachment on privacy is subject to:
• the just, fair and reasonable standard of review u/ Article 21; &
• the test listed in any other provision which has been infringed
Normative Questions
• How the constitution ought to be interpreted?
• should judges be faithful to the text or have regard to larger constitutional
purpose? Originalism vs. Living Constitutionalism?
• Negative Freedoms v Positive Freedoms?
• Is there a justification to move from negative freedoms to positive
freedoms from a ahistorical perspective?
• A right to healthcare is in fact a right to tax in disguise
• Do rights precede the state? Negative freedoms suggest yes
• To what extent do explicit rights that have a textual basis provide
room for creating rights by way of implication
• e.g. the right to life includes protection for right to livelihood (Olga Tellis v
Bombay Municipal Corporation)
• e.g. right to privacy is a part of right of liberty and dignity of man