DR.

RAM MANOHAR LOHIYA NATIONAL UNIVERSITY

SESSION (2018-2023)

SUBJECT: BASICS OF LEGISLATION

TOPIC: Justice K. S. Puttaswamy v. Union Of India and ors: A critical analysis

UNDER SUPERVISION OF: SUBMITTED BY:

Mr. Abdullah Nasir Simran Yadav

Assistant Professor (Law) 1st Semester

B.A., L.L.B (Hons.)

ROLL NO- 180101136

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 TABLE OF CONTENTS
ACKNOWLEDGEMENT ................................................................................................................................... 3
INTRODUCTION ............................................................................................................................................. 4
FACTS ............................................................................................................................................................ 4
JUDGMENT AND ANALYSIS ........................................................................................................................... 6
SURVEILLANCE AND PRIVACY ....................................................................................................................... 8
AADHAR AND PRIVACY ............................................................................................................................... 10
CONCLUSION & SUGGESTIONS ................................................................................................................... 13
REFERENCES ................................................................................................................................................ 14

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 ACKNOWLEDGEMENT

I would like to use this opportunity to extend my heartiest gratitude to all the people who have helped
me develop this project.

First and foremost, I would like to thank our teacherMr. Abdullah Nasir, who has been constantly
supporting me, guiding me and helping me with all queries and difficulties regarding this project since its
fledging stage. Without her enthusiasm, inspiration and efforts to explain even the toughest of jargons
in the most lucid manner, the successful inception of this project would have been a Herculean task.

Next, I would like thank the librariarns of Dr. Madhu Limaye library for helping me find the correct
resources for my research and for helping me enrich my knowledge.

Finally, I would like to extend my gratitude to my batch mates and seniors for providing me some unique
ideas and insights which helped me make this project even better.

I know that despite my sincerest efforts some discrepancies might have crept in, I hope and believe that
I would be pardoned for the same.

Thanking You

Simran Yadav

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 JUSTICE K.S. PUTTASWAMY v. UNION OF INDIA AND ORS :
A CRITICAL ANALYSIS
INTRODUCTION
Law cannot remain static. Various changes in the political, economic and social life of
individuals demand the law to be dynamic. The economic theory of “laissez faire” gained
popularity in the 18th and the 19th centuary. This theory implied no government interference in
commercial transactions. It gave monopoly status to the enterprises to act independently without
any governmental interference. These theories can be regarded as one or the other form of right
to privacy. Louis Brandeis and Samuel Warren first mentioned about privacy and the issues
surrounding it in an article published in the Harvard Law Review dated December 16, 1860. The
article took into consideration a broad look into a man’s spiritual and intellectual behavior and
concluded that right to privacy is a facet of right to life.

The Supreme Court of India recently delivered a judgment that right to privacy is a fundamental
right which definitely created a fuss. Amid so many controversies surrounding the said right,
privacy was finally declared a fundamental right which is embedded in Article 21 of the Indian
Constitution1 guaranteeing right to life. The Unites States of America initially had sector specific
privacy laws. Later on, it took different forms and developed. With the growing use of
information technology in almost all the sectors, there is definitely a need to recognize such a
right. Hessen (one of the German States) was the first country to enact data protection laws (in
1970) which was ultimately to safeguard the privacy of the masses. From then till now, there are

nearly 40 or more countries which have enacted such laws.

FACTS
The government of India decided to provide to all its citizens a unique identity called Aadhar
which is card containing 12 digit Aadhar number. The registration for this card was made
mandatory so as to enable the people to file tax returns, opening bank accounts etc. However, the
registration procedure for such card required the citizens to give their biometrics such as
fingerprints, iris scans etc. Retired judge justice K.S Puttaswamy filed a petition challenging the
constitutional validity of this Aadhar project contending that there was a violation of right to

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Article 21, Indian Constitution

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privacy of the citizens since, the registration for Aadhar is made mandatory. As a result of which
all those who don’t even want to register themselves, are not left with any option. Moreover,
there is a lack of data protection laws in India and hence, there are chances that the private
information of the people may be leaked if proper care is not taken. This will lead to violation of
right to privacy of the individuals. The challenge was made before a three-judge bench of the
Supreme Court on the basis that the scheme violated the right to privacy. However, the Attorney
General argued on behalf of the Union of India that the Indian Constitution does not grant
specific protection for the right to privacy. He based this on observations made in the case of
M.P. Sharma v. Satish Chandra (an eight-judge bench) and Kharak Singh v. Uttar Pradesh (a
five-judge bench). However, a subsequent eleven-judge bench found that fundamental rights
were not to be construed as distinct, unrelated rights, thereby upholding the dissenting view in
Kharak Singh. This also formed the basis of later decisions by smaller benches of the Supreme
Court which expressly recognized the right to privacy.

It was in this context that a Constitution Bench was set up and concluded that there was a need
for a nine-judge bench to determine whether there was a fundamental right to privacy within the
Constitution.

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 JUDGMENT AND ANALYSIS
Decision Overview: The nine-judge bench of the Supreme Court unanimously recognized that
the Constitution guaranteed the right to privacy as an intrinsic part of the right to life and
personal liberty under Article 21. The Court overruled M.P. Sharma, and Kharak Singh in so far
as the latter did not expressly recognize the right to privacy.

The right to privacy was reinforced by the concurring opinions of the judges in this case which
recognized that this right includes autonomy over personal decisions (e.g. consumption of beef),
bodily integrity (e.g. reproductive rights) as well as the protection of personal information (e.g.
privacy of health records). The concurring judgments included specific implications of this right,
some of which are illustrated below: J. Chandrachud (on behalf of himself, C.J. Kehar, J.
Agrawal and J. Nazeer): this opinion stated that privacy was not surrendered entirely when an
individual is in the public sphere. Further, it found that the right to privacy included the negative
right against State interference, as in the case of criminalization of homosexuality, as well as the
positive right to be protected by the State. On this basis, the Judges held that there was a need to
introduce a data protection regime in India.

Right to life as has been interpreted by the court2 on various instances3 states that there should be
life of dignity and not merely an animal existence. It therefore includes all those aspects of life
which makes a man’s life more meaningful, complete and worth living and right to privacy is
one such right.

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, Justice Subba Rao dissented by saying, “Indeed, nothing is more deleterious to a man's
physical happiness and health than a calculated interference with his privacy. Thus, right of
personal liberty as mentioned under Article 21 can be defined as a right of an individual to be
free from restrictions or encroachments on his person, irrespective of, whether these restrictions
or encroachments are directly imposed or indirectly brought about by calculated measures.
Further, right to privacy was acknowledged as fundamental right by the
Supreme Court in Gobind’s case.5

2
Oliga Tellis v. Bombay Muncipal Coroporation & others (1985) 3 S.C.C. 545.
3
Francis Corlie Mullin v. Adminstrator & Union Territory of Delhi A.I.R. 1981 S.C. 746.
4
Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.
5
Gobind v. State of Madhya Pradesh (1975) 2 S.C.C. 148.

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The Judgment of the Apex Court that Right to privacy is a fundamental right is correct.
However, it is true that privacy cannot be an absolute right. For instance, surveillance is
important to prevent crime in the society. An individual cannot simply argue that his privacy is
being violated if larger public interest requires keeping him/her under the surveillance. The
major question is that the Supreme Court of India, unlike the USA, has still not recognized the
doctrine of waiver, which facilitates that an individual can waive off the fundamental rights if
larger public interest requires so. The reason behind this being that it would defeat the purpose of
the Constitution which implies that fundamental rights are absolute. So, how can privacy be a
fundamental right if it is not absolute? As already mentioned above, privacy is not only a right, it
is a natural and inalienable right. It cannot be denied the status of a fundamental right because
liberty without privacy and dignity would be of no use.

Chandrachud J., holds that the right to privacy is not independent of the other freedoms
guaranteed by Part III of the Constitution. It is an element of human dignity and is an inalienable
natural right. He focuses on the informational aspect of privacy, its connection with human
dignity. Chandrachud J. makes several observations about privacy in the digital economy,
dangers of data mining, positive obligations on the State, and the need for a data protection law.
He also raises an important point about the negative and positive elements of privacy. The
former restricts the State from unfairly interfering in the privacy of individuals, while the latter
obliges it to put in place a legislative framework to restrict others from doing so.
In Smt. Maneka Gandhi v. Union of India & Anr.6,(1978) in this case SC 7 Judge Bench said
‘personal liberty’ in article 21 covers a variety of rights & some have status of fundamental
rights and given additional protection u/a 19. The law and procedure authorising interference
with personal liberty and right of privacy must also be right just and fair and not arbitrary,
fanciful or oppressive.

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1978 AIR 597

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 SURVEILLANCE AND PRIVACY
A person is kept under surveillance so that his/her activities could be traced and that the person
does not commit any further crimes. This definitely raises a question on the infringement of right
to privacy of that person. As already discussed earlier, the issue first came up in Kharak Singh’s
case. However, just to protect one person’s right to privacy, larger public interest cannot be
ignored. Some of the things to be taken into consideration before keeping a person under
surveillance are-

 The Criminal background of the person. Whether the person has actually committed
such crimes which require keeping him/her under surveillance.
 The frequency of the person committing crime i.e. whether he/she commits crime
repeatedly at frequent intervals or not.
 The level of crime committed i.e. it is of such heinous nature for the security of public
it is necessary to trace the activities of the person.

India does not have single exhaustive legislation governing the surveillance activities of the
Government. Everyday data is being transferred to different agencies within the country and
there is increasing number of cyber attacks which ultimately create a threat in the minds of
general public. After 2008 Mumbai attacks, the counter terrorism measures were at peak which
led to the introduction of National Intelligence Grid. The grid favors transfer of information
between 22 Central Intelligence Agencies in India. Emphasis must also be laid on Crime and
Criminal tracking network System (CCTNS) which enables sharing of information amongst
different police stations wherein one police station may have access to the information stored on
the server of other police stations.

All these routine activities demand stringent laws to ensure the privacy of the individuals.
Privacy right cannot be differentiated and this cannot be contended that particularly if a person
has committed crime then his/her privacy need not be protected. The solution to this therefore
lies, in the “reasonable expectation of privacy test” introduced by Justice Harlan. [5] This test
reveals that privacy of a person can never be violated if the person has a reasonable expectation
of privacy at that particular place. Dwelling home of a person can be one of the instance of such
place. One of the requisite of this being that an expectation of privacy at such a place must be
recognized by the society.

Another department of the Government working for surveillance is Indian Computer Emergency
Response Team (CERT- In). It is not precisely an exclusive surveillance department of the

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Government but it works to ensure cyber security. It finds its origin in the Information
technology Act, 2008 and comes into play only after an attack is there on the Indian server by a
foreign agency/individual. Apart from it, the Indian telegraph Act also imposes certain
restrictions by defining the circumstances under which the government can conduct surveillance.
This would prevent arbitrary invasion of a person’s privacy. Hence, it can be concluded that even
though there are some instances where the law regulating surveillance exists, yet there need to be
a specific legislation after privacy has been declared a fundamental right. In countries like USA,
the President has been given exclusive power to grant electronic surveillance and this may also
be granted after a court order. UK has a specific legislation called Regulation of Investigatory
Powers Act, 2000 laying down the provisions for regulating surveillance.

Most of the times, surveillance is discussed on a national level only. However, it must be noted
that there with the growing use of information technology, mass surveillance instances have also
increased. However, due to the lack of any international convention on mass surveillance, the
countries feel free to carry out such mass surveillance activities on their own free will. This
ultimately violates the privacy of individuals. This view is based on the Lotus Approach
specified by International court of Justice wherein the Court expressly said that whenever there is
no international legislation dealing with any matter, the State is free to choose their own actions
and carry out the same. This is view has also given rise to instances of mass surveillance which
ultimately violates privacy.

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 AADHAR AND PRIVACY
The main reason why the case of infringement of privacy was filed was because the Government
of India asked for biometrics of the citizens to provide them with Aadhar Cards. The Aadhar
scheme makes it mandatory for all the citizens to have the Aadhar Card otherwise they would
suffer problems with respect to opening bank accounts, payment of taxes etc. The major
contention was that the Aadhar Act does not make the enrolment for Aadhar mandatory and
hence, the said scheme is not violating any right because all the people are giving their
biometrics voluntarily. Light must be thrown on the fact that, the Government of India definitely
provides various social security benefits to the poor’s of the country. If a citizen does not obtain
Aadhar then he/she would be deprived of such benefit. This would ultimately deprive them of the
benefits and would create different unreasonable classes of citizens which would again violate
Article 14 (granting Right to Equality) of the Indian Constitution.

Another reason for the invalidity of the said scheme is that there is definitely a trace of undue
influence that can be found here. The doctrine of colourable legistation founds its genesis in the
principal that what cannot be done directly can also not be done indirectly. The Aadhar Act is
definitely a form of colourable legislation wherein the Government indirectly and secretly has an
undue influence on certain sections of the society. When a citizen is made to choose between
privacy and social welfare schemes, then definitely they would choose food and shelter first.

Another issue concerning the said issue being that even after introduction of such a scheme, the
Government did not make any stringent laws to safeguard the personal data of the citizens.
Although, the information technology act (IT Act) has been amended several times to enhance
the data protection laws, there should be stringent laws that still needs introduction to implement
the Aadhar Scheme. The Government must be made bound by law to reveal the reason for
collection of data as well as must take the responsibility for protection of the same.

One of the solutions to prevent such unauthorized leak of personal data can be by allowing
anonymous access to services and anonymous surfing of internet. However, this can also create
many problems and would give rise to more cyber crimes. Taking into consideration various
international conventions like Article 8 of European Convention and Article 12 of Universal
Declaration of human rights, the declaration and recognition of privacy as a fundamental is the
need of the hour. The Supreme Court of India has given a right judgment and stringent data

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protection laws needs implementation. The privacy bill pending in the Parliament must be passed
after the judgment.

With the increase in the exchange of Trans-border data, the Organisation for Economic Co-
operation and Development (OECD) has given various guidelines with respect to protection of
personal data , some of them being-

 The data must be collected with the lawful consent of the person giving such data and
must be used for lawful means.
 The personal data must not be leaked or transferred to some other person without the
prior permission of the person giving data.

Hence, the said Aadhar Scheme also violates various international conventions also. Right to
Privacy has also been mentioned in Article 127 of Universal Declaration of Human Rights (1948) which
states that, “No one shall be subject to arbitrary interference neither with a person’s privacy, family,
home or correspondence nor to attack upon his honor and reputation. Article 17 of International
Covenant on Civil and Political Rights8 (to which India is a party) - Article 89 of the European Convention
on Human Rights, which states that “Everyone has the right to respect for his private and family life, his
home and his correspondence; there shall be no interference by a public authority except such as is in
accordance with law and is necessary in a democratic society in the interests of national security, public
safety or the economic well-being of the country, for the protection of health or morals or for the
protection of the rights and freedoms of others.” . It was held in the case of Puttaswamy10, that, in U.S.,
Fourth Amendment guarantees the rights of Privacy. ) Various countries that have specific data
protection laws are as follows
 Canada which has its own Personal Information Protection and Electronic Documents
Act, 2000.

 K. Data protection Act, 1998

 Privacy Act, 1993 of New Zealand

In a unanimous ruling, a nine-judge bench of the Supreme Court on Thursday upheld the right to
privacy as a fundamental right under the Constitution. Interestingly, Justice DY Chandrachud, one of
the judges in the nine-judge constitution bench in a discordant note overruled an earlier

7
Universal Declaration of Human Rights,art.12.
8
International convention on civil and political rights, art.17 .
9
European Convention on Human Rights, art. 8.
10
Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 S.C.C. 1.

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judgement authored by his father Justice YV Chandrachud in the ADM Jabalpur v Shivakant
Shukla case.

Chandrachud wrote the verdict in the Supreme Court's landmark judgment on Thursday that
declared right to privacy integral to the Constitution. Justice YV Chandrachud had ruled that
"when the right (to personal liberty) is put in action it is impossible to identify whether the right
is one given by the Constitution or is one which existed in the pre-Constitution era." Overruling
his father's judgement, Justice DY Chandrachud said that judgments rendered in the ADM
Jabalpur case were 'seriously flawed.' In doing so he set aside the opinion of his father, Justice
YV Chandrachud, in the controversial ADM Jabalpur case. His conclusions got the backing of
three members of the nine-judge bench - Chief Justice JS Khehar, Justice RK Agrawal and
Justice SA Nazeer. The senior Chandrachud was among four out of five judges who in 1976
upheld a presidential order to impose Emergency in the country. During the 1975 Emergency,
when fundamental rights were suspended by the Indira Gandhi-led Congress government, a five-
judge Supreme Court bench backed it. The bench included Justice YV Chandrachud. "Dignity is
associated with liberty and freedom. No civilized state can contemplate an encroachment upon
life and personal liberty without the authority of law. Neither life nor liberty are bounties
conferred by the state, nor does the Constitution create these rights," he said, agreeing with
Khanna's views in 1976. "The power of the Court to issue a Writ of Habeas Corpus is a precious
and undeniable feature of the rule of law," he said. It is rare instance in the history of Indian
judiciary where a son has overruled his father's judgment.

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CONCLUSION & SUGGESTIONS

With the recognition of privacy as a basic and fundamental right of an individual, India definitely
cannot lag behind. The judgment of the Supreme Court is correct and true and with the growing
information technology, privacy needs to be fundamental right. However, it is also true that
stringent laws needs introduction after this. An expert committee must be formed to probe into
the matter as to how many privacy infringement issues are taking place in India and accordingly
legislation exclusively dealing with such problems must be enacted. Data protection laws must
be made more stringent and must conform to OECD guidelines.

When it comes to conflict between infringement of privacy and public interest, reasonable care
must be taken to choose as to what is more important. Individual interest cannot override public
interest. The maxim “saluspopuliest suprema lex” which means public welfare is the highest law
must be maintained in the democracy. Jurisprudentially also, Bentham gave the pain and
pleasure theories. Hence, the Government must take into account the pleasure of larger number
of people should try to inflict lesser pain. There must be regulation on the arbitrary use of power
by the Government with respect to personal information of the people. One of the greatest
advantages that India has is that the Privacy bill, 2011 is still pending in the Parliament. Hence,
relevant amendments can be made to it before enacting it as legislation.

As far as homosexuality is concerned, Indian has also come amongst the list of countries which
have decriminalized homosexuality. On 6th September 2018, the constitutional bench gave the
judgement that it is no longer an offence in India to have consensual sex between adults of same
sex .11

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Navtej Singh Johar v. Union Of India 2018.

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 REFERENCES
STATUTES
Article 21, Indian Constitution

Black's Law Dictionary 8th ed. (West Group, 2004), Bryan A. Garner
Universal Declaration of Human Rights, art.12.
International convention on civil and political rights ,art.17 .
European Convention on Human Rights, art 8.

CASES
Kharak Singh v. State of UP 1964 SCR (1) 332.

M.P. Sharma v. Satish Chandra 1954 SCR 1077.

Kharak Singh v. State of U.P., A.I.R. 1963 S.C. 1295.

Gobind v. State of Madhya Pradesh (1975) 2 S.C.C. 148.
Maneka Gandhi v. Union of India & Anr 1978 AIR 597
Oliga Tellis v. Bombay Muncipal Coroporation & others (1985) 3 S.C.C. 545.
Francis Corlie Mullin v. Adminstrator & Union Territory of Delhi A.I.R. 1981 S.C. 746.
Justice K.S. Puttaswamy (Retd.) v. Union of India, A.I.R. 2015 S.C. 3081.
Navtej Singh Johar v. Union Of India 2018.

BOOKS
M P Jain, Indian Constitutional Law (6th edn, Lexis Nexis,2013).

OTHER SORCES
https://www.oneindia.com/india/right-privacy-justice-chandrachud-overrules-his-father-s-judgement-as-seriously-
flawed-2529398.htm

https://www.livelaw.in/supreme-courts-right-privacy-judgment-foundations

http://www.scconline.com/TruePrint/J_2012_5_NUJS_L_Rev_411_shraddhat65_gmailcom_20171225_013128.pd

https://www.cfr.org/blog/implications-indias-right-privacy-decision

https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India_indian_kanoon

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