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This article is written by Kishita Gupta and Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad and Vithi Khandelwal, a first-year student at Institute of Law, Nirma University. In this article, the landmark judgment of the case Justice K.S. Puttaswamy (Retd.) and anr. V. Union of India has been discussed.

It has been published by Rachit Garg.

Introduction

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India is a landmark case and the judgment was given by the Hon’ble Supreme Court of India. The judgment given in the case by the Bench gave a new perspective to the Right to Privacy of the citizens. It was held that the Right to Privacy is a Fundamental Right under Articles 14, 19 and 21 of the Indian Constitution.

The Hon’ble Court upheld the Aadhaar Act and stuck down the provision of the Act which was unconstitutional. It was held by the Court that the Right to Privacy of the citizens has to be protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. The Court explicitly overruled the previous landmark judgments of the Supreme Court Kharak Singh vs State of UP and M.P Sharma vs Satish Chandra in which it was held that Right to Privacy is not a Fundamental Right of the citizens under the Indian Constitution.

To know more about the constitutional validity of Aadhar Act in the case of Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India in brief, please refer to the video below:

How to read the Puttaswamy judgement

The 547-page verdict includes numerous insightful observations and six opinions. However, it is crucial to remember that only the majority view in a judgement is conclusive in regard to subsequent instances. In this case, the plurality opinion was written by Chandrachud J., on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), whereas the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring opinions. 

Therefore, Justice Chandrachud’s opinion is the ‘plurality’ opinion, but it does not represent the majority because it has not been signed by five or more judges in total. Similar to dissenting opinions, concurring opinions are also not legally binding and do not set a precedent for other cases. As a result, the only element of the decision that is binding and has the signatures of all nine judges is the order.

Judgements on privacy before Puttaswamy

M.P. Sharma v. Satish Chandra (1954) 

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.

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

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.

People’s Union for Civil Liberties v. Union of India, (2004)

According to the three-judge panel in the present case, “Right to privacy is secondary to that of State security.”

State of Maharashtra v. Bharat Shanti Lal Shah (2008)

Although listening to others’ conversations violates an individual’s right to privacy, a three-judge panel in the present case found that the right can be limited in accordance with legally sound procedures. The court must therefore ensure that the process itself is fair, just, and reasonable and is not arbitrary, whimsical, or oppressive.

District Registrar and Collector v. Canara Bank (2005)

Every citizen has a right to protect their own privacy, according to a division bench in District Registrar and Collector v. Canara Bank (2005). The right to privacy cannot be asserted when an issue is included in public records, including court documents.

Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 

In this case, the issue involved the constitutionality of the 99th Constitutional Amendment and the National Judicial Appointments Commission Act, 2014 (NJAC Act). The 5-judge bench stated that the balance between transparency and confidentiality is very delicate and that if some sensitive information about a particular person is made public, it can have a far-reaching impact on his or her reputation and dignity. The NJAC Act and the 99th Constitution Amendment Act do not address an individual’s privacy concerns. 

The Court, in an effort to find a balance between the right to know and the right to privacy, stated that the right to know is not a fundamental right, but at most, it is an implicit fundamental right, and it is hedged in with the implicit fundamental right to privacy that all persons enjoy.

Summary of facts

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 even after the Aadhaar scheme received statutory backing with the passage of the Act in 2016. The claim that the Aadhaar scheme and the Act infringed the right to privacy was one of the main criticisms levelled against them. 

Along with the substantive challenge based on the right to privacy, the enactment of the Act as a Money Bill in accordance with Article 110 of the Constitution of India was contested because it did not require a Rajya Sabha vote.

‘Unique Identification for BPL Families’ was a project which was initiated by the Government of India. A Committee was set up for the project. The creation of a Unique Identification database was suggested by the Committee for the said project. The project was decided to be set up in three phases. 

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.

Why was there a need to constitute a nine-judge bench to decide upon the right to privacy

The debate over whether privacy is a fundamental right first surfaced in 2015 before a three-judge Supreme Court panel that was examining the constitutionality of the Aadhaar system. After that, the Attorney General claimed that even though the right to privacy had been recognised by the Supreme Court in a number of decisions, Part III of the Constitution did not protect this fundamental freedom because the larger Supreme Court benches in the M.P. Sharma (8-judge bench) and Kharak Singh (6-judge bench) cases refused to agree that the right to privacy was guaranteed by the Constitution. Consequently, in order to guarantee “institutional integrity and judicial discipline,” this panel sent the case to a five-judge bench. 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.

Identification of Parties

Petitioner- Justice K.S.Puttaswamy (Retd).

Respondent- Union of India.

Bench- Justice D. Misra, Justice D.Y. Chandrachud, Justice A Bhushan, Justice AM Khanwilkar, Justice A Sikri.

Issues before the Court

  • Whether the Aadhaar Project has a propensity to create a surveillance state and is thus unconstitutional based on this ground?
  • Whether the Aadhaar Project violates the right to privacy of the citizens and is unconstitutional based on this ground?
  • Whether Section 7 and 8 of the Aadhaar Act also includes children?
  • Whether the following provisions and Regulations of the Aadhaar Act are unconstitutional:
  1. Sections 2(c) and 2(d) read with Section 32;
  2. Section 2(h) read with Section 10 of the Act- Central Identities Data Repository (CIDR);
  3. Section 2(v), Section 3, Section 5, Section 6, Section 8, Section 9;
  4. Sections 11 to 23;
  5. Sections 23 and 54;
  6. Section 23(2)(g) read with Chapter VI & VII; 
  7. Section 29, Section 33, Section 47, Section 48, Section 57, Section 59
  • Whether the Aadhaar Act can be treated as a ‘Money Bill’ within the meaning of Article 110 of the Indian Constitution?
  • Whether Section 139AA of the Income Tax Act, 1961 violates the right to privacy of the citizens under the Indian Constitution?
  • Whether Rule 9(a)  of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereafter, which mandate linking of Aadhaar with bank accounts, are valid under the Indian Constitution?
  • Whether Circular dated March 23, 2017, issued by the Department of Telecommunications which mandates the linking of the mobile number of the citizens with Aadhaar is illegal and unconstitutional?
  • Whether certain actions which were taken by the respondents are in contravention of the interim orders passed by the Court?

Contentions by Parties on issues

Petitioners

The petitioners contended that the planning of the Aadhaar Act by its very virtue is probabilistic in nature. The Act aims to extend subsidies, benefits, and services to society. It is possible that rather than providing these benefits, subsidies, and services to the section of society for which these are meant, it may end up excluding them from receiving such beneficiaries.

The main arguments were that the Act may take away the rights and liberties of the citizens of the country which are guaranteed to them under the Indian Constitution. Strict implementation of the Aadhaar Act can be a serious problem as it is contrary to the Fundamental Rights which are given in the Indian Constitution to the citizens of the country.

The Aadhaar was in contravention to the Constitution and had the potential to enable an intrusive state to become a surveillance state (a state in which the Government has the ability to monitor the activities of its citizens) based on the information that would be collected from each individual by creating a joint electronic mesh.

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 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.

Most of the counsel who appeared for different petitioners agreed that as far as allotment of Aadhaar number for unique identification of the residents is considered there was no question of dispute.

The arguments which were made by some famous lawyers against the Aadhaar Act were as follows:

Shyam Divan

Shyam Divan was the first counsel who started with the petitioner’s arguments. He challenged the Aadhaar Act, 2016. He contended that as per the Indian Constitution the State is bound to provide benefits to its citizens by way of subsidies and services. The Aadhaar Act makes these benefits conditional for the citizens which the State is bound to provide to its citizens. To avail such benefits the Aadhaar Act needs the citizens to give their biometric and demographic information. Section 7 of the Act was challenged on this ground by Shyam Divan.

The Aadhaar Act enabled the Government to track the citizens which violated their right to privacy and hence was unconstitutional. The UIDAI gives the power to the State to cancel the number of the citizens which is provided in their Aadhaar and such an act of the State would not have any redressal mechanism.

Kapil Sibal

The main contention of Kapil Sibal was that when Right to Privacy was made a Fundamental Right under Article 21 of the Constitution then the personal information of the citizens which the Act seeks to receive should not be allowed. The Act takes away the right to make a choice from the citizens as according to the Act it is mandatory for the citizens to reveal the information to the State which the Act needs them to in order to avail the benefits and subsidies provided by the Government as without Aadhaar authentication the citizens will be denied of those Government beneficiaries. The Aadhaar Act takes away the informational privacy from the citizens which have been recognized as the Right to Privacy.

It was contended by him that the collection of information from the citizens violates Article 21 of the Constitution.

Arvind Datar

It was contended by Arvind Datar that the Aadhaar Act is unconstitutional as it can’t be treated as a money bill. Linking of the bank accounts with Aadhaar violates the rights of the citizens as they are not left with a choice to operate their bank accounts without linking it with the unique ID and hence, it is violative of Article 14 and 21 of the Constitution. Further, the State did even give an explanation to the citizens for linking their bank accounts with Aadhaar. A reason to do so was needed to be given by the State in order to explain the object which the State intends to achieve by doing so. The right to make a choice is a right that has been recognized as a Fundamental Right under the Right to privacy. The Aadhaar Act takes away the right to make a choice by the citizens and thus, violates the Fundamental Right of the citizens under Article 21 of the Constitution.

The Act also violates the principle of proportionality under Article 14 of the Constitution as having an Aadhaar will give a valid identity to a person and whosoever fails to do so will not be considered to have a valid identity.

He argued that Section 139AA of Income Tax Act which makes it compulsory for citizens to link their Aadhaar with their bank accounts is violative of the Right to Privacy under Article 21 of the Constitution and is needed to be reconsidered.

P Chidambaram

It was contended by P Chidambaram that the Aadhaar Act was in no way a money bill and so it should not be treated as one. He stated that a bill to qualify to be a money bill needs to go through strict criteria that have been set and if the bill passes such criteria only then it can be treated as a money bill. He also stated that all the money bills need to go through the Rajya Sabha and then it is passed to the President for his assent. The President has the power to send back the money bill for reconsideration which has been passed by the Rajya Sabha if he feels that some corrections are needed to be made in it. 

Hence, the provisions of the Aadhaar Act which fails to fulfill the criteria of a money bill cannot be considered to be passed and so the entire law is void and needs to be struck down.

Respondents

It was stated by the respondents in the affidavit that their intention behind introducing the Act was to ensure that all the citizens who are eligible for the benefits and subsidies by the Government receive such benefits and subsidies and aren’t deprived of it. 

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 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. 

This specific exclusion, in the context, ensures that the scope of including additional demographic information is very narrow and limited. Such biometric information is very commonly obtained all over the world in order to identify a person. The argument of the respondent was, thus, that the information which Aadhaar Act seeks to obtain is non-invasive and non-intrusive identity information.

The comprehensive reports on data protection and informational privacy were prepared by the Planning Commission of India under the Chairmanship of Retd. Justice A.P. Shah. the report included five salient features that aimed to protect the privacy of citizens.

The framework suggested by the Planning Commission was based on the following five salient features:

  • technological neutrality and interoperability with international standards; 
  • multi-dimensional privacy; 
  • horizontal applicability to state and non-state entities; 
  • conformity with privacy principles; and 
  • a co-regulatory enforcement regime.

On 31st July 2017, the Central Government constituted a committee to review data protection norms in the country and make recommendations which was chaired by Retd. Justice B N Srikrishna, former Judge of the Supreme Court of India. The Committee had recently released its report and the first draft of the Personal Data Protection Bill, 2018. It comprehensively addresses the process of personal data. It includes information like where such data has been collected, disclosed, shared or otherwise processed within the territory of India. The provisions and principles of Europe’s General Data Protection Regulation (EUGDPR) and EU data protection jurisprudence were used for the purpose of framing the bill.

The traditional concepts of the data controller in which the entity processes the data and the person whose data is being collected known as data subject was replaced by the Draft Bill. The new concept introduced by the Draft Bill was ‘data fiduciary and dad principal’. The new concept aimed to establish a trust-based relationship between the entity and the person whose data is being collected.

The Draft bill and the report includes the rights and obligations of the data fiduciary and data controller respectively. These rights include the right to access and correction, the right to data portability and the right to be forgotten – a right to prevent or restrict disclosure of personal data by a fiduciary. The consent plays a crucial role as it has been given an important status in the draft data protection law. Thus, for the purpose of the process of processing the personal details of the citizens, it plays a significant role.

It was stated by the respondents that Aadhaar works as an identity card which is used by around 92 crore people for accessing various social schemes or availing benefits which are provided by the Government to its citizens. It is a document which widely is being used by the citizens and restricting it would create a problem for the citizens. Aadhaar is a document that can help the Government in detecting and eliminating the duplication and impersonation in muster rolls and beneficiary lists. It also helps the workers under MGNREGA and pensioners to withdraw their wages and pensions every month. 

The respondents also rebutted the privacy contention stating that the data which is obtained by the Act is secure as it is encrypted at its source and all the biometrics of the citizens are stored by the Government in the Government of India’s servers. The Government of India’s servers has a security standard which is one of the best in the world. The duplication of cards or fake cards for availing the benefits which are provided by the Government can be avoided with the help of Aadhaar number which asked from the citizens. Aadhaar will also be able to help in reducing the involvement of middlemen who try to drain off a part of the Government’s subsidy which is made available for a particular section of the society. Government subsidies are mainly concerned with goods and services like food grains, fertilizers, water, electricity, education, healthcare. The Government usually provides these goods and services at a lower price than the market price. To make this initiative work efficiently Aadhaar can be used. Aadhaar can be used to ensure timely and direct payment to the sections of society for which subsidies are made available by the Government and prevent leakage of money. This step can save thousands of crores of rupees which are lost in leakage. The Government have identified crores of duplicate ration cards, Aadhaar can ensure that the benefits and subsidies which are mean for certain sections of society actually reaches them.

The objective behind the provision which is included by the Government for the citizens to quote their Aadhaar number while applying for PAN card and for filing Income Tax returns is to identify the tax evaders by linking their PAN card with Aadhaar. Mandatory linking of PAN card with Aadhaar can curb tax evaders and also ensure that one person owns only one PAN card. Making Aadhaar mandatory can identify the fraudulent practices which are going on in the country and curb it to a large extent. Unique Identification Authority of India can even permanently or temporarily deactivate an individual’s number which has been provided in the Aadhaar.

Observations of the Court

The right to privacy is a basic fundamental right

The standards for and collection of demographic biometric data by the government were questioned on the grounds that they violated the right to privacy, the Supreme Court’s three-judge panel noted in its order dated 11-8-2015 while considering the constitutional challenge to the Union Government’s Aadhaar card programme. The Attorney General for India argued that two decisions—the first, M.P. Sharma (1954), delivered by an eight-judge bench, and the second, Kharak Singh (1963), delivered by a six-judge bench, cast doubt on the existence of a fundamental right to privacy. Each of these rulings noted that the right to privacy is not expressly protected by the Indian Constitution, according to the Attorney General’s statement. However, the petitioners argued that the rulings in the M.P. Sharma and Kharak Singh cases were based on the same principles as those outlined in the A.K. Gopalan case (1950), which interpreted each provision in the Chapter on fundamental rights as embodying a different form of protection and was later declared to be unsound by an eleven-judge bench in the R.C. Cooper case (1970). The petitioners claimed that the two preceding rulings’ foundations were invalid as a result. Additionally, it was argued that the minority judgement of Subba Rao, J. in the Kharak Singh case was particularly accepted in the seven-judge bench ruling in the Maneka Gandhi case (1978) and that the majority’s decision was overruled.

The Supreme Court’s three-judge panel took note of recent Supreme Court rulings in which the right to privacy was declared to be a fundamental freedom that was guaranteed by the Constitution as it addressed these challenges. These rulings include PUCL (1997), R. Rajagopal (1994), and Gobind (1975). In light of this situation, the significant and far-reaching constitutional interpretation issues involved, it was decided that institutional integrity and judicial discipline would need a referral to a bigger bench. On July 18, 2017, a Constitution Bench led by the Chief Justice said it would be appropriate for a bench of nine judges to decide the matter. “It seems that it has become imperative for us to assess whether there is any basic right to privacy under the Indian Constitution,” the Constitution Bench’s order stated. The answer to this question would essentially involve determining whether the Supreme Court’s rulings that there isn’t a fundamental right of this kind, made by an eight-judge Constitution Bench in the M.P. Sharma case and the six-judge Constitution Bench in the Kharak Singh case, are the correct expressions of the constitutional position.

As a result, the following two types of questions were raised for the prevailing bench to consider:

  1. Whether the Constitution recognises a basic right to privacy, and if so, where is it located and what are its boundaries?
  2. What is the ratio decidendi in the cases of M.P. Sharma and Kharak Singh, and was the decision made correctly in those situations?

The Supreme Court’s nine-judge bench held, in response to the reference, that according to Article 21 of the Constitution and as one of the freedoms guaranteed by Part III of the Constitution, the right to privacy is safeguarded as an integral component of the right to life and to personal liberty. The M.P. Sharma judgement, which stated that the right to privacy is not guaranteed by the Constitution, has been overruled. The Kharak Singh case ruling is overruled insofar as it maintains that the Constitution does not guarantee the right to privacy.

Nature and characteristics of the right to privacy

  1. The right to privacy is a natural, primordial, basic, inherent, and inalienable right. It pervades the preambular philosophy at the core of ‘liberty’ and ‘dignity,’ as well as the human conceptions of ‘life’ and ‘personal liberty’ entrenched in Article 21 and the broad freedoms protected under Part III, which are seen to be necessary for a meaningful human existence. The Protection of Human Rights Act of 1993 and other international accords also recognise it. The right to privacy is present throughout Part III, even when it is not expressly listed. It is an intrinsic part of the jurisprudential framework of natural rights and natural law.
  2. Its three meanings, i.e., spatial control, autonomy in judgement, and informational control, are important. It has both normative and descriptive elements, as well as both negative and positive content. It encompasses both physical and mental aspects and has intrinsic as well as practical significance. It cannot be deemed vague or rejected as a fundamental right because a detailed definition cannot be provided for it.
  3. Other than Article 21, numerous articles in Part III include the right to privacy, and the various rights contained under privacy are examined and listed.
  4. The importance of the individual and their autonomy over all other considerations is the right to privacy. The idea of guaranteeing a dignified existence for the individual is at the heart of constitutional focus, with the ideas of justice, liberty, equality, and fraternity animating the vision. Part III’s goal is to put citizens front and centre and hold the State responsible for them.
  5. The fundamental, unavoidable requirement for the enjoyment of one’s own liberties and the freedoms granted by the Constitution is privacy. It is the vague major premise of the Constitution’s Part III. The rationale for judicial enumeration is particularly compelling when it comes to privacy.
  6. It is not necessary to address every definitional issue at the time of recognition of a fundamental right. Definitional ambiguity is not a justification for failing to acknowledge the right to privacy. The idea that the right to privacy consists of three aspects, i.e., repose, sanctuary, and intimate decision, is sufficient for the purposes of this case.
  7. Right to privacy is not an elitist construct. It is available to each and every individual in the nation.
  8. The right to privacy has the nature of being both a common law right and a fundamental right. Only the incidence of the responsibility to respect the right and the forum in which a failure to do so can be rectified constitutes substantive differences between the two types of rights, whose nature and content may be identical.
  9. Privacy protects heterogeneity along with recognising the plurality as well as the diversity of our culture.
  10. According to Article 29, a group with a distinctive language, script, or culture must have the right to preserve the same, the right to privacy is also vital to cultural and educational rights.
  11. In public spaces, one’s right to privacy remains attached to them.
  12. The equality guarantee under Article 14 protects citizens from arbitrary State action. It stops the State from treating people differently. The protection against arbitrary State action is violated when the State violates a sacred personal space, whether it is in the body or the mind.
  13. The right to privacy has always been viewed as a crucial component of the right to own property (Article 300 A), and it has received the same treatment in both civil and criminal law, as evidenced by all of the legal trespassing offences and torts.
  14. Right to privacy includes informational and technological privacy.
  15. In particular, the right to identification, the right to control the broadcast of personal information, the right to be forgotten, and the privacy of children are all included in the right to privacy.
  16. Right to privacy doesn’t protect the information already in the public domain when it is voluntarily parted with. This information has three facets, it is non-rivalrous, invisible and recombinant.

Limitations that could be imposed on the right to privacy

Is privacy an absolute right

The standard of scrutiny would be as expressly stipulated under Article 19 if a privacy claim specifically comes only from one of the expressly listed provisions under that Article. Legislation that specifies a fair, just, and reasonable method must be valid with regard to the infringement on life and personal liberty under Article 21 in order for an invasion of privacy to be justified under that provision of the Constitution.

In order to violate someone’s privacy, there are three conditions that must be met. These are also the requirements to check whether there is a substantive challenge to the law on grounds of the “procedure established by law”. The following test must be passed for the same:

  1. Legality, which assumes that there are laws;
  2. A need that is specified in terms of an authorised State goal; and
  3. Proportionality, which guarantees a sensible connection between the goals and strategies used to achieve them.

Once it is shown that each constitutional freedom benefits from privacy and that privacy may be found in each one, it follows that any state interference with privacy must be judged in light of whatever Part III guarantees are being restricted. As a result, in addition to the test required by Article 21, invasions of privacy must typically pass additional standards. 

Thus, whether privacy is an absolute right, it is subject to limitations and restrictions put in place by the State to safeguard legitimate State interests or the public good.

What is ‘state interest’

According to the Court, in the case of privacy, legitimate state interests would permit abridgement of the right to privacy by the enactment of a law in an instantiated (non-exhaustively) manner to ensure good governance in a social welfare State. These include the following:

  • National security, including terrorist and cyber attacks. 
  • Data mining to ensure that public resources are not syphoned off by the undeserving in social welfare programmes and schemes.
  • Prevention of crime.
  • Protecting interests of the revenue, public health.
  • Digital platforms. 

Characteristics of dignity

  1. Since fundamental rights work to ensure that each person has the dignity of existence, dignity serves as the glue that holds the fundamental rights together. Individual dignity is guaranteed by privacy and its associated ideals, and liberty can only truly exist when people can live their lives with dignity. The preservation of privacy allows the fulfilment of dignity and is a fundamental goal of the protection of life and liberty. The fundamental element of human dignity is privacy.
  2. Without privacy, dignity is impossible. Both fall under the unalienable rights to life, liberty, and the pursuit of happiness guaranteed by the Constitution.
  3. One can also find the reflection of dignity in Article 14 of the Constitution as a guarantee against arbitrariness. 
  4. The reflection of dignity can also be traced to Article 19’s lamps of freedom.

Right to life and liberty : its nature 

With respect to the right to life and personal liberty, the Supreme Court held that it is inherent or natural to human beings. These rights are not bestowed or conferred for the first time by the Constitution. The Court went on to rule that the majority view in ADM Jabalpur, (1976) stands overruled, while the dissenting view of Khanna, J., in the ADM Jabalpur case, is the correct position of law. The Constitution does not create the right to life and personal liberty but recognises them as inherent in each person as a fundamental and integral part of the human element that resides inside.

Constitutional interpretations

The Court also talked about the power of interpretation under the Constitution, which is primarily covered by Articles 145 and 14. It was noted that our Constitution does not leave it up to the three branches of government to interpret it. According to Article 145(3), the Supreme Court alone must decide what the Constitution’s meaning should be when a significant question arises. The Constitution assigns this responsibility to a minimum of five court judges for this purpose.

The Court noted that the process of interpretation is dynamic and ever-evolving. It is important for constitutional concepts to develop and broaden as society does. The current socioeconomic and political environment should be used as the framework for interpretation rather than the ‘originalist’ period during which the Constitution was drafted and established. The Constitution is considered to be organic in nature according to the original purpose hypothesis. In doing so, the Court should give room for future generations to tackle new problems. The ‘great brooding spirit’ of law is the result of the “constant growth of rights in the shape of its branches and leaves through an interpretative process” while the roots of the constitutional tree of justice stay firm.

The “black matter” of the Constitution, according to the Court, is just as significant as its explicit provisions. Even in the lack of explicit language, implications can be drawn. The Supreme Court should look into non-expressive aspects while keeping in mind Indian citizens’ desire for freedom. It continued by pointing out that the Constitution’s language is not the sole relevant constitutional law because the Court must determine the Constitution’s structure, intent, and boundaries.

Further, the Court pointed out the importance of external aid, such as Foreign Constitutions/law/views/English decisions. The Court ruled that although the Constitution of India should be construed in light of the socio-economic and political circumstances of our nation, these external aids do deserve to be taken into account. It also ruled that the Constituent Assembly Debates can be considered by courts but cannot form a conclusive basis for the interpretation of a constitutional provision.

Miscellaneous 

Types of privacy

Per Chandrachud, J. (for Khehar, C.J., Agrawal, J., himself and Nazcer, J.) recognised the following major types of privacy:

  1. Bodily privacy, which corresponds to physical body privacy. The inability to stop others from harming one’s body or from restricting the freedom of bodily mobility is implicit in this, and it is a form of negative freedom.
  2. Spatial privacy, intimate relationships and family life are good examples of this, which is mirrored in the privacy of a private space through which access by others can be controlled to the space.
  3. Communicational privacy, which is demonstrated by the ability to limit access to communications or regulate how information is shared with third parties.
  4. Proprietary privacy, which is represented by a person’s interest in using the property as a way of keeping certain items, facts, or information private from others.
  5. Intellectual privacy, which is characterised by a person’s desire for their own peace of mind and the freedom to form their own thoughts and beliefs.
  6. Decisional privacy, indicated by the capacity to make intimate choices, which are largely sexual or reproductive choices or those involving intimate relationships.
  7. Associational privacy, which is characterised by the ability of the individual to choose who she wishes to interact with
  8. Behavioural privacy, which acknowledges a person’s privacy interests even when they engage in activities that are visible to the public. According to the theory of behavioural privacy, even when access is provided to others, the person has the right to control the scope of access and maintain some degree of privacy from unauthorised intrusion.
  9. Informational privacy, which demonstrates a desire to limit who has access to information and restrict the spread of information about oneself.

Judgment

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. The Act ensures that the benefits and subsidies of the Government are received by the people for whom it is meant. The Court held Section 57 of the Act to be unconstitutional and was, therefore, struck down. 

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. Section 57 of the Aadhaar Act was held to be unconstitutional and was struck down. 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 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.

The conclusion of the judgement is as follows:

  1. The right to privacy is a fundamental right. It is an intrinsic part of the right to life and personal liberty in Article 21 of the Constitution of India.
  2. Family, marriage, procreation, and sexual orientation are all intrinsic aspects of dignity. They all together form the privacy of a home.
  3. The decisions of M.P. Sharma, Kharak Singh and ADM Jabalpur stand overruled.
  4. All the decisions subsequent to the judgement of Kharak Singh that have enunciated the position laid down in the first point are the correct positions of law.

Conclusion

The Court held that Right to privacy is a fundamental right under article 21 of the Indian Constitution. The judgment delivered in the cases of M.P. Sharma and Kharak Singh was overruled in this case. Aadhar card cannot be made compulsory for linking with bank accounts, etc. but made linking of Aadhar and pan card mandatory and for filing income tax returns filing. The concerns raised under the petition were addressed and the frivolous laws have been quashed and others have been considered rationally by the Hon’ble Court. 

The Aadhaar Act was launched with the purpose to give identity and empowerment to the marginalized section of the society. It provides a unique identification number to the citizens of India. The Aadhaar number is unique and therefore, it can’t be duplicated. The unique identification ensures that the benefits and subsidies of the Government are availed by the section of society for which it is meant. Aadhaar can prevent unfair practices and leakage of thousands of crores of money. Many privacy rights questions were also raised in the case. The question of dignity of citizens, informational self-determination and consent formed the basis for the privacy rights claims.

The right to Privacy formed an important part of the case. A five-judge bench of the Hon’ble Supreme Court on 26th September 2018, delivered a judgment in favor of respondents. The validity of Aadhaar was upheld by the Court after striking down various clauses and Sections of the Act which were contrary to the Constitution and violated the rights of the citizens. Justice A K Sikri who wrote the majority of the judges declared the Aadhaar Act to be valid after striking down Section 33(2) and Section 57 of the Act. Various questions were raised by the petitioners on issues like the Right to Privacy of the citizens and the possibility of state surveillance as well as the possibility of breach of information which was collected by the Government for Aadhaar cards of the citizens. The questions of the petitioners have mitigated the claim of UIDAI that their system is one of the best in the world and secured enough to keep the information of the citizens safe. The Court held the Aadhaar Act to be Constitutionally valid as the Act was under reasonable restrictions of the Constitution.

The majority of the honorable Bench also stated that the right of choice of the citizens to avail the Aadhaar card will not be protected by upholding the Aadhaar Act. The citizens will not be left with a choice as Aadhaar will be mandatory for availing the subsidies and benefits of the Government and if a citizen is excluded from availing the subsidies and benefits of the Government due to lack of Aadhaar or authentication problem it can result in the violation of the dignity of the citizen. The Bench also said that linking of Aadhaar to PAN card is not important as there isn’t any constitutional rationale behind it. Upholding of Aadhaar can possibly result in the violation of the Right to Privacy even after striking down Section 33(2) and Section 57 of the Act. In order to protect the Right to Privacy of the citizens the Court clearly ruled out the possibility for private entities to use the authentication mechanism or for asking Aadhaar details by the citizens. The step taken by the Court was to protect the Right to Privacy of the citizens and it clearly showed that the Right to Privacy is indeed a Fundamental Right.

Frequently Asked Questions (FAQs)

What was held to be unconstitutional in the K.S. Puttaswamy judgement?

In the K.S. Puttaswamy case, the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was challenged. However, the Court upheld the validity of the Act, stating it to be constitutionally valid.

Does Article 21 include the right to privacy?

Yes, the Supreme Court, through the judgement of Justice K.S. Puttaswamy (Retd.) and Anr. vs. Union of India (2017), held that the right to privacy is a fundamental right. It is an intrinsic part of the right to life and personal liberty in Article 21 of the Constitution of India.

References 


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