Assignment Submission

for

Continuous Evaluation 3

In the course of

Legal Methods
2BL133
on

JUSTICE K.S. PUTTASWAMY(RETD.) & ANR. VS. UNION OF INDIA

&ORS.

Guided By: Submitted By:

Dr. Mukti Jaiswal Aditi Kashyap

Assistant Professor 21BAL162
Institute of Law B.A. LLB
Nirma University Semester 1

Institute of Law, Nirma University

 CASE ANALYSIS
JUSTICE K.S. PUTTASWAMY(RETD.) & ANR. VS. UNION OF INDIA
&ORS.
Decided on: 24th August 2017
Citations: Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
Hon’ble Judges/Coram: Chief Justice J.S. Khehar, Justice J. Chelameshwar, Justice
S.A. Bobde, Justice D.Y. Chandrachud, Justice S.A. Nazeer, Justice R.F. Nariman, Justice
R.K. Agarwal, Justice A.M. Sapre, Justice S.K. Kaul.

FACTS OF THE CASE:

In January, 2009, the Government of India launched the Aadhar Scheme aiming to create the
world’s largest unique identification system. Retired High Court Judge K.S. Puttaswamy filed
a petition in the Supreme Court in 2012 challenging the constitutionality of the Aadhar
Scheme on the grounds that it violates the right to privacy.

Initially, the case was presented before a three judge Bench of the court, on 11th August 2015,
here the bench ordered that the matter should be referred to a larger Bench. On 18th July
2017, the matter was again heard by a bench of five judges, where it was decided that the
matter would be heard by a nine judge Bench in order to determine whether the Right to
Privacy was guaranteed as an independent Fundamental Right under the Indian Constitution.

The petitioner claimed before the nine- judge panel that this was an independent right granted
by Article 21 of the Constitution’s right to life with dignity. The Respondent claimed that the
Constitution only recognized personal liberty that included a limited right to privacy.

Following the inconsistent findings from the Supreme Court Benches, the matter was bought
before the nine-judge panel to establish whether the right to privacy was recognised as an
independent basic right.

FACTS IN ISSUES:
1. Whether right to privacy is a Fundamental Right under Article 21 of Part III of the
Constitution of India, 1950.
 2. Is the Court’s decision in M.P. Sharma & Ors. Vs. Satish Chandra, DM, Delhi & Ors.
and also, in Kharak Singh vs. The State of U.P. that there are no such fundamental
rights, the proper statement of the constitutional position?

ARGUMENTS:
PETITONERS ARGUMENTS:
The petitioner’s argument dealt with the scope of the right to privacy, demanding for a multi-
dimensional model of privacy as a fundamental right. The Petitioners contended that the
Constitution should be read in accordance with the Preamble, while remembering that
privacy is a natural right, as well as a universal human right.

The petitioner argued that decision in M.P. Sharma and Kharak Singh were based on the
principle of A.K. Gopalan v. State of Madras1, where the court had ruled that Article 21 of
the constitution did not require Indian courts to apply a due process of law standard, which
had been later overruled in the seven Bench decision in Maneka Gandhi v. Union of India2
holding that a “procedure under Article 21 of the constitution cannot be arbitrary, unfair,
oppressive or unreasonable”. Thus, appealing the court to evaluate the decision of the
correctness of the decision in the cases on grounds that it violated the Rights to Privacy under
Article 21 of the constitution.

RESPONDENTS ARGUMENTS:
The respondents primarily relied on the judgements made in M.P. Sharma3 and Kharak
Singh4 cases where the court had ruled that “privacy was not a guaranteed constitutional
right”. It, however, held that Article 21 (right to life) was the repository of residuary personal
rights and recognised the common law right to privacy.

The respondents also claimed that the framers of our constitution had not made the right to
privacy a fundamental right. The right to privacy according to the respondents was an
abstract idea that could only be established as a statute and common law right. The
respondents argued from a narrow approach which emphasised the constitution as the

1
A.K. Gopalan v. State of Madras, AIR 1950 SC 27; 1950 SCR 88
2
Maneka Gandhi v. Union of India, AIR 1978 SC 597; (1978) I SCC 248
3
M.P. Sharma & Ors. V. Satish Chandra and Ors., 1954 AIR 300, 1954 SCR 1077
4
Kharak Singh v. The State of Uttar Pradesh, 1963 AIR 1295; 1964 SCR (1) 332
repository of fundamental rights and gave Parliament the exclusive body with the authority to
change the fundamental rights.

JUDGEMENT WITH RATIONALITY:

The nine-judge bench of the Supreme Court passed a landmark judgement pronouncing
privacy to be a unique and independent basic right under Article 21 of the constitution. The
essence of the judgement established an expansive view of the right to privacy: it was not a
confined right against physical invasion, nor a subsidiary under the Article 21, but one that
spanned the body and mind, including decisions, choices, knowledge and freedom. Part III of
the Constitution was deemed to provide an overarching, enforceable, and comprehensive
right to privacy. The Court also held that the right to privacy is not an absolute right, and that
any invasion of privacy by a state or non-state actor must pass the triple test, which includes
the following:

1. Legitimate Aim
2. Proportionality
3. Legality
The scope of the right was addressed in detail in the various opinions of the judges.
Specific ramifications of this right were discussed in the concurring decisions, some of
which are highlighted here:

 J. Chandrachud on behalf of himself, C.J. Kehar, J. Agrawal, and J.

Nazeer declared in the judgement that when an individual is in the public
arena, their privacy is not completely abandoned. It was also held that the
right to privacy also encompassed the negative right against state
intrusion, such as when homosexuality was criminalised, as well as the
positive right to be protected by the state. The Judges concluded that India
needed to implement a data protection regime on this basis.
 J. Chelameswar in his judgement held that the right to privacy included
the freedom to refuse medical treatment, the right to refuse forced feeding,
the right to eat beef, and the right to wear religious symbols in one's
personal appearance, among other things.
  J. Bobde in his judgement stated that permission was required for the
distribution of content that was essentially personal, such as medical
information.
 J. Nariman described the aspects of privacy in this concurring opinion as
non-interference with the individual body, protection of personal
information, and autonomy over personal choices.
 J. Sapre in his judgement stated that the right to privacy, in addition to
existing as a separate right, encompassed an individual's rights to freedom
of expression and movement, and was vital to sustaining the constitutional
aspirations of liberty and fraternity, which safeguarded the individual's
dignity.
 J. Kaul in his judgement highlighted the right to privacy in terms of
protecting personal information and preserving one's reputation. He stated
that the law must protect data and limit national security exceptions that
allow the government to intercept data.

The court also passed the following judgements:

 The ruling in M.P. Sharma vs. Satish Chandra, which held that India's
Constitution does not safeguard the right to privacy, has been
overruled.
 In the perspective that it holds that the right to privacy is not protected
by the Constitution, the decision in Kharak Singh vs. State of UP is
also overruled.

Informational privacy was found to be an element of the right to privacy in the ruling. While
acknowledging the need for a data protection statute, the Court left it unresolved, stating that
the parliament has the authority to legislate on these issues.

ANALYSIS OF THE CASE:

The judgement was path-breaking as it only declared right to privacy as a fundamental right
but also went on to recognise a number of new aspects of privacy that the Supreme Court had
never mentioned in their previous judgements, reshaping the scope of fundamental rights in
India. The judgement also implied that a person’s privacy is protected even when they are in
a public domain reflects the democratic nature of our system. The judgements implications
that government should establish an online data protection regime to protect individual
privacy was excellent as India even today is lagging behind in making laws and regulations to
ensure protection of our online data and therefore our privacy. It also provided aid and
inspiration to privacy campaigners all around the world by putting right to privacy at the
centre of the constitutional debate in the world’s largest democracy.

This should broaden the definition of privacy in terms of government monitoring, religious
expression, and data security. This decision was made by an unprecedented nine-judge Apex
court bench. As a result, unless overruled by a larger bench, it created a binding precedent for
all courts. The true test of privacy will be how future courts interpret the Puttaswamy ruling
in order to address cases related to Article 21.

Following the major 2017 decision, the fundamental right to privacy has been used as
foundation in a number of high-profile cases, including the Navtej Johar and Joseph Shine
cases. It also falls under the SDG 16 of the UN as it provides justice for all, peace and the
formation of laws and regimes protecting online privacy that will be beneficial for all of us.
 BIBLIOGRAPHY/REFERENCES
 SCC Online Database
 Manupatra
 SCO Observer, [Link] (last visited on 18/11/2021)
 Global Freedom of Expression, Colombia University,
[Link] (last visited on 16/11/2021)
 Indian Kanoon, [Link] (last visited 11/11/2021)