sona2019 Case Law, India: Puttaswamy v Union of Inia, Supreme Court recognises a constitutional ght to privacy ina landmark judgment The international Forum for Responsible Media Blog Case Law, India: Puttaswamy v Union of India, Supreme Court recognises a constitutional right to privacy ina landmark judgment - Hugh Tomlinson QC (On 24 August 2017, a nine judge bench of the Supreme Court of India handed down its 0 decision in the important constititutional Sit case of Puttaswamy v Union of india (pdf. In a remarkable and wide ranging 547 page Judgment the Court ruled unanimously that privacy is a constitutionally protected right in India, This is landmark case which is Ukely to lead to constitutional challenges to a wide range of Indian legislation, Background ‘The case arose out of a challenge to a constitutional challenge to the Aadhaar project, which alms to bulld a database of personal identity and biometric Information covering every Indian, More than a billion Indians have so far been registered in the Aadhaar programme, which sees citizens issued with a 12-digit number that aligns to specific biometric data such as eye scans and fingerprints. Registration is now become mandatory for filing tax returns, opening bank accounts, securing loans, buying and selling property or even making purchases of 50,000 rupees (£610) and above. In 2012, Justice KS. Puttaswamy (Retired) filed a petition in the Supreme Court challenging the constitutionality of Aadhaar on the grounds that it violates the right to privacy. ‘The Government argued that there was no constitutional right of privacy In view of a unanimous decision of eight judges in M.A. Sharma v. Satish Chandra ((1954] SCR 1077) and a decision by a majority of four judges in Kharak Singh v. State of Uttar Pradesh (964) 1 SCR 332) ‘The case came before a three judge Bench of the Court which, on 11 August 2015, ordered that the matter should be referred to a larger Bench of the Court. On 18 July 2017, a five judge Constitution Bench ordered the matter to be heard by a nine judge Bench. While it awaited clarification on the right to privacy, the bench hearing the constitutional challenge to Aadhaar passed an interim order restricting compulsory linking of Aadhaar for benefits delivery Judgment ‘The nine judges of the Court gave six separate opinions, producing what must be a contender for the longest reasoned judgment ever produced by a court, These follow us on e RESOURCES Practice Guidance: Interim Non Disclosure Orders [2012] WLR 1003, (pal Model Interim Non-Disclosure Order ‘Queen's Bench Out of Hours Form [doc] EWCA Case Tracker Discover Leveson (Searchable Leveson Database) Royal Charter on Self-Regulation of the Press [pdf ‘SEARCH INFORRM'S 8106 MEDIA LAW EMPLOYMENT ‘OPPORTUNITIES. Schillings, Associate (4 POE) Schillings, Solicitor (NQ+) Himsworth Scott, Senior Associate ‘CONTACT THE INFORRM BLOG Inforrm can be contacted by email [email protected] ‘To? posts Law and Media Round Up ~ 14 October 2019 Top 10 Defamation Cases of 2017, a selection - Suneet Sharma What ’Coleen Rooney vs Rebekah Vardy’ tells us about ‘contemporary gender politics - Jilly Boyce Kay and Melanie Kennedy hitps:inforrm.org/2017/08/04/case-taw-indla-puttaswamy.-v-union-ofndia-supreme-court-ecognises-e-constiutionsl-right‘o-prvacyin-edandm... 1/13sonazo19 Case Law, India: Puttaswamy v Union of India, Supreme Court recognises a constitutional ght to privacy ina landmark judgment judgments defy short summary and only a few key themes can be picked out, The leading judgment is a tour de force, given on behalf of four judges by Dr DY Chandrachud J in 266 pages. It deals, in detail, with the Inéian domestic case law on privacy and the nature of constitutional rights. It also considers Comparative Law on Privacy (from England, the US, South Africa, Canada, the European Court of Human Rights and the Inter-American Court of Human Rights). Various criticisms of the privacy doctrine - from Bork, Posner and feminist critics ~ are addressed, The problem for the Petitioners was that the Indian Constitution [pdf does not contain an explicit privacy right. Nevertheless, the Indian Constitution is a living instrument. The Courts have sought to give effect to the "values" which the Constitution it contains by Interpreting express fundamental rights protections as containing a wide range of other rights. The crucial provision for this purpose is Article 21 which provides that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law" Chandrachud J points out that this provision has been interpreted as containing, inter alia, the rights to a speedy wal, legal aid, shelter, a healthy environment, frredom from torture, reputation and to earn a livelihood (for a list see [150). Privacy is an incident of fundamental freedom or liberty. In an important section of the joint judgment headed “Essential Nature of Privacy’, CChandrachud J analyses the concept of privacy as being founded on autonomy and as an essential aspect of dignity ({168] to [169)} ‘Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects forthe individual a zone of choice and self-determination"|69] In the next section of the judgment Chandrachud J considers “Informational Privacy’ Feferring to a range of academic writing. In particular, the judgment includes an infographic from an article by Bert-Jaap Koops et al, “A Typology of Privacy’ to illustrate the fundamental notions of privacy: ‘The judgment refers with approval to the 2012 Report of the Expert Group on Privacy [pdf - which sets out nine principles (which have much in common with the EU data protection principles) ‘The conclusions are set out at pages 260-265 of the Joint Judgment. It Is held that privacy is a constitutionally protected right which emerges. primarily, from Article 21 of, the Constitution. This is not an absolute right but an interference must meet the threefold requirement of (i) Legality; () the need for a legitimate aim and (i) proportionality (p.264). It is also noted that, as informational privacy is a facet of the Fight to privacy the Government will need to put in place a robust regime for data protection, ‘Two other important points are dealt with in the joint judgment. Firstly, it emphasises the fact that sexual orientation is an essential attribute of privacy thus casting doubt on the case of Suresh Kumar Koushal v. Naz Foundation (2014) which Upheld section 377 of the Indian Penal Code, which effectively criminalizes same-sex relationships between consenting adults. A reconsideration of Suresh Koushal is pending before a constitution bench of the Supreme Court Secondly, Chandrachud J overturns the judgment of his father (Chandrachud G)) in the notorious case of ADM Jabalpur v Shivakant Shukla (1976) which held that fundamental Fights could be suspended during the Emergency ({121]). Though the ADM Jabalpur judgment was nullified by 44th constitutional amendment it has now finally been put to rest. In his concurring judgment Sanjay Kishan Kaul J commented “the ADM Jabalpur case ... was an aberration in the constitutional Jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection” case Law, India: Purraswamy v Union of India, Supreme Court recognises a constitutional right to privacy in a landmark Judgment - Hugh Tomlinson QC Top 10 Defamation Cases of 2018: a selection ~ Suneet sharma Why we need a national commitment to open justice data = Judith Townend Top 10 Privacy and Data Protection Cases of 2018: a selection How to avold defamation - Steven Price ‘On its 10th Anniversary, Here are 10 Reasons to be Concerned about the “Extreme' Pornography Law - Tara Beattie Meghan Markle, Ben Stokes, Gareth Thomas: three reasons why UK press needs help to understand ‘public interest’ ~ Alexandros Antoniou EMAIL SUBSCRIPTION Enter your email address to subscribe to this blog and receive notifications of new posts by email Join 6,215 other subscribers Email Address ‘Sign me up! ENT JUDGMENTS — BAILII BLOGROLL Alternative Leveson 2 Project Blog Law Online Brett Wilson Media Law Blog Canadian Advertising and Marketing Law Carter-Ruck's News and Insights CCeartaie - The Irish for Rights Centre for Internet and Society ~ Stanford (US) yberlaw Clinic Blog Cyberleagle Czech Defamation Law David Banks Media Consultancy Defamation Update Defamation Watch Blog (Aus) hitps:inforrm.org/2017/08/04/case-taw-indla-pttaswamy-v-union-ofndia-supreme-court-recognises-e-constiutional-right‘o-prvacyin-eandm.... 2/13sona2019 Case Law, India: Puttaswamy v Union of India, Supreme Court recognises a constitutional ght to privacy ina landmark judgment RF Nariman J gave a judgment of 122 pages and four other judges gave substantive concurring judgments. By its order the Court ruled that the right to privacy is protected as part of the right to life and fundamental liberty under Article 21. The case was referred back to the original bench three judges for decision on the merits. Comment ‘This decision has been recognised as being of great legal and political significance, The Opposition Congress party leader said that it “will rank among the most important Judgments delivered by the Supreme Court since the advent of the constitution of India.” “The Hindustan Times commented that “The country could not have gat a better gift from ‘the judiciary for its 70th year of independence”. The case has been seen as a major setback for the Modi Government. A striking feature of the joint judgment is the detailed treatment of issues of digital privacy which are of increasing important both in india anc! internationally. ‘The future of the Aadhaar programme has been placed in doubt and, in the light of the comments of the majority there is a strong possibility that the Supreme Court will now strike down legislation criminalising same-sex relationships. The joint Judgment makes It clear chat the Indian Government is now under an obligation to establish a data protection regime to protect the privacy of the individual ‘The constitutional right to privacy can now be used to challenge to bans on beef and alcohol consumption in many Indian states. @)P-dominated governments around the country implemented the bans as part of their efforts to enshrine Hindu religious practices into the law. ‘The decision has been welcomed by Indian and international commentators, it puts the Fight to privacy at the heart of constitutional debate in the world’s largest democracy and Is likely to provide assistance and inspiration for privacy campalgners around the world. Hugh Tomlinson QC Is a specialist in media and information law at Matrix Chambers and an editor of Inforrm Share this: @ Print Email ¥ Twitter HH Facebook Pocket @ skype Telegram BD Linkedin © WhatsAop ® Pintorest t Tumbr & Reasit Like this: vo Bide 4 bloggers Me tis. « The Press Problem: How to Avoid Hate When Discussing Muslim Affairs - Aidan White Using data protection faw to defend your reputation: what about the new Data Protection Bill? ~ Michael Patrick and Alicia Mendonca » Actions Bi} Comments ass [Trackback Information Date : September 4, 2017 Tags: Hugh Tomlinson QC, Indian Constitution Droit et Technologies d'Information (France) ECHR Blog Fel Chang Dao - Free Speech in China Guardian Media Law Page Hacked Off Blog Himsworth Scott Insights Information Law and Policy Centre Blog Internet & Jurisdiction Internet Cases (US) Internet Policy Review IP Kat Journlaw (Aus) LSE Media Policy Project Media Reform Coalition Blog Media Report (Dutch) Michael Geist - Internet and e- ‘commerce law (Can) Musings on Media (South Africa) Paul Bernal’s Blog Press Gang Press Gazette Media Law ‘Scandalous! 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Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. | | QP COURT, GOVERNMENT, 20's REGULATOR AND OTHER RACOLB LEGAL (08:58:46) RESOURCE SITES {..1 right to privacy in a landmark judgment’, (Inform’s Blog, September Australian High Court, 4,2017) Commonwealth Legal Information accessed on Ist January, [J Institute Cour De Cassation France He Loading Furopean Data Protection Board Full Factorg Reply German Federal Constitutional court IMPRESS Project Aadhaar and Privacy: Mutually Exclusive? | Legally Flawed (15:00:59) |PsO oe Irish Supreme Court L..] In August, the verdict of the Supreme Court in K. Puttuswamy v. New Zealand Supreme Court Union of India came out. A 9 judge bench was constituted and it NSW Case Law unanimously ruled that privacy is a... Ofcom Press Complaints Commission K Loading, Press Council (Australia) Press Council (South Africa) Reply South African Constitutional Court Uk Judiciary Inforrm is taking a Summer Break | Inforrm’s Blog (00:06:25) UK Supreme Court US Supreme Court 000) hitps:inforrm.org/2017/08/04/case-law-indla-puttaswamy.-v-union-ofndia-supreme-court-ecognises-e-constiutional-right‘o-prvacyin-eandm.... 4/13sona2019 Case Law, India: Puttaswamy v Union of India, Supreme Court recognises a constitutional ght to privacy ina landmark judgment LL. Case Law, India: Puttaswamy v Union of India, Supreme Court DATA PROTECTION AUTHORITIES recognises a constitutional right to pri. [... ‘Agencia Espafiola de Protecci6n 1 Loading. de Datos (in Spanish) Reply BID! 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