CASE ANALYSIS

JUSTICE K S PUTTASWAMY (RETD.), AND ANR. …....Petitioners

VERSUS

UNION OF INDIA AND ORS. ……………Respondents

BY
KAVIT KAUSHIK
Vth SEMESTER, LL.B (2017-2020)
SECTION-B
177240
 Table of Contents

1. FACTS .........................................................................................3
2. ISSUES ........................................................................................4
3. RATIONALE/RATIO ...............................................................4
4. POINT OF LAW ........................................................................5
5. JUDGEMENT (9 JUDGES) ......................................................6
6. FINDINGS ................................................................................10
 FACTS

1. The case was brought by 91-year old retired High Court Judge Puttaswamy
against the Union of India (the Government of India) before a nine-judge bench
of the Supreme Court which had been set up on reference from the Constitution
Bench to determine whether the right to privacy was guaranteed as an
independent fundamental right following conflicting decisions from other
Supreme Court benches.

2. The latest case had concerned a challenge to the government’s Aadhaar scheme
(a form of uniform biometrics-based identity card) which the government
proposed making mandatory for access to government services and benefits. 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.

3. 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.

4. The Petitioner argued before the nine-judge bench that this right was an
independent right, guaranteed by the right to life with dignity under Article 21
of the Constitution. The Respondent submitted that the Constitution only
recognized personal liberties which may incorporate the right to privacy to a
limited extent. The Court considered detailed arguments on the nature of
fundamental rights, constitutional interpretation and the theoretical and
philosophical bases for the right to privacy as well as the nature of this right.
 ISSUES

1. Whether the law laid down in the case of M.P.Sharma and others vs. Satish Chandra,
District Magistrate Delhi & Ors. AIR 1954 SC 300 and Kharak Singh vs. State of
Uttar Pradesh & Ors. AIR 1963 SC 1295 insofar as it relates to the "right to privacy
of an individual” is correct?
2. Whether "right to privacy" is a fundamental right under Part III of the Constitution of
India?
3. If it exists, where is it located?
4. What are the contours of such Right?
5. If there is a constitutionally protected right, whether this has the character of an
independent fundamental right or whether it arises from within the existing guarantees
of protected rights such as life and personal liberty?
6. The content of privacy and the nature of the regulatory power of the state?

RATIONALE/RATIO

Privacy includes at its core the preservation of personal intimacies, the sanctity of family
life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right
to be left alone. Privacy safeguards individual autonomy and recognises the ability of the
individual to control vital aspects of his or her life. Personal choices governing a way of life
are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and
diversity of our culture. While the legitimate expectation of privacy may vary from the
intimate zone to the private zone and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because the individual is in a public
place. Privacy attaches to the person since it is an essential facet of the dignit y of the human
being.”

“To live is to live with dignity. The draftsmen of the constitution defined their vision of the
society in which constitutional values would be attained by emphasising, among othe r
freedoms, liberty and dignity. Dignity is the core which unites the fundamental rights
because the fundamental rights seek to achieve for each individual the dignity of existence.
Privacy with its attendant values assures dignity to the individual and it is only when life
can be enjoyed with dignity can liberty be of true substance… The draftsmen of the
constitution had a sense of history− both global and domestic– as they attempted to translate
their viasion of freedom into guarantees against authoritarian behaviour. The backdrop of
human suffering furnished a reason to preserve a regime of governance based on the rule of
law which would be subject to democratic accountability against a violation of fundamental
freedoms. Hence, it would be an injustice both to the draftsmen of the constitution as well
as to the document which they sanctified by constricting its interpretation to an originalist
interpretation.
 POINT OF LAW

GOLDEN TRIANGLE OF CONSTITUTION

 Article 14 – Equality before the law, the state shall not deny any person equality
before the law or equal protection of law within the territorial limits of India or
prohibition on the grounds of race, caste, religion, sex or place of birth.
 Article 19 – Protection of certain rights regarding freedom of speech and
expression. All citizen shall have the right
o To freedom of speech and expression
o To assemble peacefully and without arms
o To form associations or unions
o To move freely throughout the territory of India
o To reside and settle in any part of the territory of India, and
o To practice any profession or to carry on any occupation, trade or
business

This Article provide restrictions to various issues affecting public tranquillity and security.
Such restrictions include:

1. Security of the State

2. Friendly relation with foreign states
3. Public order
4. Decency and morality
5. Contempt of court
6. Defamation
7. Incitement of offenses
8. Sovereignty and integrity of India.

 Article 21 – Protection of life and personal liberty, no person shall be deprived of

his personal liberty except according to the procedures established by law.

These rights are regarded as the basic principles for the smooth running of life for the citizens
of our country. The golden triangle provides full protection to individuals from any
encroachment upon their rights from the society and others as well. Article 14, it provides for
equality before law and equal protection of the law. It means that no person is deprived of his
equality among other citizens of our country. The provision also gains importance because the
enactment of such a provision leads to the abolishing of certain inhuman customary practices
of our country. The provisions of this article also envisage certain legal rights like protection
of law which purely means that the law should be the same for every person with some
necessary exceptions.
 JUDGEMENT
(9 JUDGES)

A. CJI JAGDISH SINGH KHEHAR, JUSTICE R K AGRAWAL, JUSTICE Dr D Y

CHANDRACHUD, JUSTICE S ABDUL NAZEER

1. The judgment in M P Sharma holds essentially that in the absence of a provision

similar to the Fourth Amendment to the US Constitution, the right to privacy cannot
be read into the provisions of Article 20 (3) of the Indian Constitution. The
judgment does not specifically adjudicate on whether a right to privacy would arise
from any of the other provisions of the rights guaranteed by Part III including
Article 21 and Article 19. The observation that privacy is not a right guaranteed by
the Indian Constitution is not reflective of the correct position. M P Sharma is
overruled to the extent to which it indicates to the contrary.

2. Kharak Singh has correctly held that the content of the expression ‘life’ under
Article 21 means not merely the right to a person’s “animal existence” and that the
expression ‘personal liberty’ is a guarantee against invasion into the sanctity of a
person’s home or an intrusion into personal security. Kharak Singh also correctly
laid down that the dignity of the individual must lend content to the meaning of
‘personal liberty’. The first part of the decision in Kharak Singh which invalidated
domiciliary visits at night on the ground that they violated ordered liberty is an
implicit recognition of the right to privacy. The second part of the decision,
however, which holds that the right to privacy is not a guaranteed right under our
Constitution, is not reflective of the correct position. Similarly, Kharak Singh’s
reliance upon the decision of the majority in Gopalan is not reflective of the correct
position in view of the decisions in Cooper and in Maneka. Kharak Singh to the
extent that it holds that the right to privacy is not protected under the Indian
Constitution is overruled.

3.
a. Life and personal liberty are inalienable rights. These are rights which are
inseparable from a dignified human existence. The dignity of the individual,
equality between human beings and the quest for liberty are the foundational
pillars of the Indian Constitution.
b. Life and personal liberty are not creations of the Constitution. These rights are
recognised by the Constitution as inhering in each individual as an intrinsic and
inseparable part of the human element which dwells within.
c. Privacy is a constitutionally protected right which emerges primarily from the
guarantee of life and personal liberty in Article 21 of the Constitution. Elements
of privacy also arise in varying contexts from the other facets of freedom and
dignity recognised and guaranteed by the fundamental rights contained in Part
III.
d. Judicial recognition of the existence of a constitutional right of privacy is not an
exercise in the nature of amending the Constitution nor is the Court embarking
on a constitutional function of that nature which is entrusted to Parliament.
e. Privacy is the constitutional core of human dignity. Privacy has both a
normative and descriptive function. At a normative level privacy sub-serves
those eternal values upon which the guarantees of life, liberty and freedom are
founded. At a descriptive level, privacy postulates a bundle of entitlements and
interests which lie at the foundation of ordered liberty.
f. Privacy includes at its core the preservation of personal intimacies, the sanctity
of family life, marriage, procreation, the home and sexual orientation. Privacy
also connotes a right to be left alone. Privacy safeguards individual autonomy
and recognises the ability of the individual to control vital aspects of his or her
life. Personal choices governing a way of life are intrinsic to privacy. Privacy
protects heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to
the private zone and from the private to the public arenas, it is important to
underscore that privacy is not lost or surrendered merely because the individual
is in a public place. Privacy attaches to the person since it is an essential facet
of the dignity of the human being.
g. This Court has not embarked upon an exhaustive enumeration or a catalogue of
entitlements or interests comprised in the right to privacy. The Constitution
must evolve with the felt necessities of time to meet the challenges thrown up
in a democratic order governed by the rule of law. The meaning of the
Constitution cannot be frozen on the perspectives present when it was adopted.
Technological change has given rise to concerns which were not present seven
decades ago and the rapid growth of technology may render obsolescent many
notions of the present. Hence the interpretation of the Constitution must be
resilient and flexible to allow future generations to adapt its content bearing in
mind its basic or essential features.
h. Like other rights which form part of the fundamental freedoms protected by Part
III, including the right to life and personal liberty under Article 21, privacy is
not an absolute right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on fundamental rights. In
the context of Article 21 an invasion of privacy must be justified on the basis of
a law which stipulates a procedure which is fair, just and reasonable. The law
must also be valid with reference to the encroachment on life and personal
liberty under Article 21. An invasion of life or personal liberty must meet the
three-fold requirement of:
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and
(iii) Proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.
i. Privacy has both positive and negative content. The negative content restrains
the state from committing an intrusion upon the life and personal liberty of a
 citizen. Its positive content imposes an obligation on the state to take all
necessary measures to protect the privacy of the individual.

4. Decisions rendered by this Court subsequent to Kharak Singh, upholding the right
to privacy would be read subject to the above principles.

5. Informational privacy is a facet of the right to privacy. The dangers to privacy in an

age of information can originate not only from the state but from non-state actors
as well. We commend to the Union Government the need to examine and put into
place a robust regime for data protection. The creation of such a regime requires a
careful and sensitive balance between individual interests and legitimate concerns
of the state. The legitimate aims of the state would include for instance protecting
national security, preventing and investigating crime, encouraging innovation and
the spread of knowledge, and preventing the dissipation of social welfare benefits.
These are matters of policy to be considered by the Union government while
designing a carefully structured regime for the protection of the data. Since the
Union government has informed the Court that it has constituted a Committee
chaired by Hon’ble Shri Justice B N Srikrishna, former Judge of this Court, for that
purpose, the matter shall be dealt with appropriately by the Union government
having due regard to what has been set out in this judgment.

B. JUSTICE Chelameswar,

1. For the purpose of this case, it is sufficient to go by the understanding that the right
to privacy consists of three facets i.e. repose, sanctuary and intimate decision. Each
of these facets is so essential for the liberty of human beings that I see no reason to
doubt that the right to privacy is part of the liberty guaranteed by our Constitution.
2. It goes without saying that no legal right can be absolute. Every right has
limitations. This aspect of the matter is conceded at the bar. Therefore, even a
fundamental right to privacy has limitations. The limitations are to be identified on
case to case basis depending upon the nature of the privacy interest claimed.
There are different standards of review to test infractions of fundamental rights.
While the concept of reasonableness overarches art III, it operates differently across
Articles (even if only slightly differently across some of them). Having
emphatically interpreted the Constitution’s liberty guarantee to contain a
fundamental right of privacy, it is necessary for me to outline the manner in which
such a right to privacy can be limited. I only do this to indicate the direction of the
debate as the nature of limitation is not at issue here.
3. To begin with, the options canvassed for limiting the right to privacy include an
Article 14 type reasonableness enquiry; limitation as per the express provisions of
Article 19; a just, fair and reasonable basis (that is, substantive due process) for
limitation per Article 21; and finally, a just, fair and reasonable standard per Article
21 plus the amorphous standard of ‘compelling state interest’. The last of these four
 options is the highest standard of scrutiny that a court can adopt. It is from this menu
that a standard of review for limiting the right of privacy needs to be chosen.
4. If a privacy claim specifically flows only from one of the expressly enumerated
provisions under Article 19, then the standard of review would be as expressly
provided under Article 19. However, the possibility of a privacy claim being
entirely traceable to rights other than Art. 21 is bleak. Without discounting that
possibility, it needs to be noted that Art. 21 is the bedrock of the privacy guarantee.
If the spirit of liberty permeates every claim of privacy, it is difficult if not
impossible to imagine that any standard of limitation, other than the one under
Article 21 applies. It is for this reason that I will restrict the available options to the
latter two from the above described four.

C. S. A. BOBDE, J.

1. There is nothing unusual in the judicial enumeration of one right on the basis of
another under the Constitution. In the case of Article 21’s guarantee of ‘personal
liberty’, this practice is only natural if Salmond’s formulation of liberty as “incipient
rights” is correct. By the process of enumeration, constitutional courts merely give
a name and specify the core of guarantees already present in the residue of
constitutional liberty. Over time, the Supreme Court has been able to imply by its
interpretative process that several fundamental rights including the right to privacy
emerge out of expressly stated Fundamental Rights. In Unni Krishnan, J.P. v. State
of A.P.39, a Constitution Bench of this Court held that “several unenumerated rights
fall within Article 21 since personal liberty is of widest amplitude”.
In the case of privacy, the case for judicial enumeration is especially strong. It is no doubt a
fair implication from Article 21, but also more. Privacy is be a right or condition, “logically
presupposed” by rights expressly recorded in the constitutional text, if they are to make sense.
As a result, privacy is more than merely a derivative constitutional right. It is the necessary and
unavoidable logical entailment of rights guaranteed in the text of the constitution.
2. The ineluctable conclusion must be that an inalienable Constitutional right to
privacy inheres in Part III of the Constitution. M.P. Sharma and the majority
opinion in Kharak Singh must stand overruled to the extent that they indicate to the
contrary.
3. The right to privacy is inextricably bound up with all exercises of human liberty –
both as it is specifically enumerated across Part III, and as it is guaranteed in the
residue under Article 21. It is distributed across the various articles in Part III and,
mutatis mutandis, takes the form of whichever of their enjoyment its violation
curtails.
4. Any interference with privacy by an entity covered by Article 12’s description of
the ‘state’ must satisfy the tests applicable to whichever one or more of the Part III
freedoms the interference affects.
 D. Kaul J. also elaborates on the influence of big data, in particular, its impact on the
actions of an individual and the resultant chilling effect it may have on free speech and
expression. He thus observes the need to protect certain information from both the State
as well as private actors.

E. Finally, Sapre J. focuses his opinion on the importance of the Preamble to the
Constitution, and the principles of liberty, dignity, and fraternity enshrined therein.

FINDINGS

To understand to why right to privacy is of utmost importance and why common people
are the stakeholders in this, one should welcome this judgement delivered by nine
judges which granted the citizens of India a right which ensures that India wouldn’t be
next china where extreme surveillance by state has put this natural right out of the
window. The nine-judge bench of the Supreme Court has given us an outstanding
foundation for a progressive civil liberties jurisprudence, located in ideas of liberty,
dignity, autonomy, and privacy. In the times to come, citizens will look to the Court to
build upon that foundation, and to carry through with the beginnings that it has made
in Puttaswamy case. But in future, the situations that come before the Court will no
longer be abstract, the questions will no longer be purely legal, and the pressures will
be real, not merely academic. Puttaswamy case only makes possible what will, in the
last analysis, require judicial courage and wisdom to accomplish: meaningful protection
of the rights of the individual against the creeping claims of the State. But it is that very
possibility which, if the State’s arguments had been accepted, would have been snuffed
out at its very inception.

JUSTICE ABHAY MANOHAR SAPRE IN HIS JUDGEMENT SAID “I also hold that the
“right to privacy” has multiple facets” FOLLOWING THIS,
I have divided my findings into 4 heads:

A. BACKGROUND

B. POLITICAL & LEGAL IMPACT

C. ECONOMIC IMPACT

D. SOCIAL NETWORKING SITES(SNS’s) IMPACT

A. BACKGROUND

While the privacy judgement is a cause for celebration, its full benefit will only
come when it is applied to actual state actions that undermine privacy. Adherence
to constitutional principle is not an academic exercise, but requires a prompt
protection of real rights and liberties. Judicial action should spring at moments
when the state oversteps onto the citizen. Few would dispute that determinations
on privacy would be of greater benefit when the Supreme Court protects us with
foresight rather than retrospect.

B. Political and legal impact

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 country could not have got a better gift from the judiciary for its 70th year
of independence”.

A striking feature of the joint judgment is the detailed treatment of issues of digital
privacy which are of increasing important both in India and 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 that
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. BJP-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
right to privacy at the heart of constitutional debate in the world’s largest democracy
and is likely to provide assistance and inspiration for privacy campaigners around the
world.

C. ECONOMIC IMPACT

The sharing and the protecting of personal data can have positive and negative
consequences at both the individual and the societal levels. The personal information
has both private and commercial value, and the sharing of data may reduce frictions in
the market and facilitate transactions. On the other hand, the claimed societal benefits
of data sharing have not always been vetted and confirmed”.
 In fact, exploiting the commercial value of data can often entail a reduction in private
utility, and sometimes even in social welfare overall. Thus, consumers have good
reasons to be concerned about unauthorized commercial application of their private
information. Use of individual data may subject an individual to a variety of personally
costly practices, including price discrimination in retail markets, quantity
discrimination in insurance and credit markets, spam, and risk of identity theft, in
addition to the disutility inherent in just not knowing who knows what or how they will
use it in the future.

Personal data — like all information after all — is easily stored, replicated, and
transferred, and regulating its acquisition and dissemination is a challenging
undertaking for individuals and governments alike.

Given the fundamentally sensitive nature of personal data, it is not surprising that
advancements in information technology and increased globalization of trade,
investment, information flows, and security threats have brought concerns over the
erosion of personal privacy to the forefront of public debate. Numerous Internet firms
have collected large amounts of data from their users and either sell this data or use it
to enable advertisers to target and personalize ads. While consumers can and do benefit
from targeted product recommendations, they also can and do incur substantial
monetary costs and disutilities from violations of their privacy. Such concerns have led
to new regulations across world governments, some protecting privacy some legalizing
its erosion, and some suggesting the implementation of additional opt-in and opt-out
controls for users. With regulations struggling to keep pace, industry competition has
been behind both new privacy-enhancing and privacy-invasive technologies. New
search engines, social networks, ecommerce websites, web browsers, and
individualized controls for privacy-conscious consumers have emerged. Concurrently,
social media services have facilitated a culture of disclosure: a disclosure of one’s
activities, location, emotions, work history, and political opinions.
While, overall, these technologies seemingly leave privacy choices in the hands of
consumers, many (if not most) consumers, in practice, lack the awareness and technical
sophistication required to protect and regulate the multiple dimensions of their personal
information. Privacy-invasive technological services have become integral to every-
day communications, job searches, and general consumption. At the same time,
privacy-protecting services require additional levels of user effort and know-how,
which limits their efficacy, especially within some of the most vulnerable segments of
the population. Thus, it stands to reason that, case by case, diverse combinations of
regulatory interventions, technological solutions, and economic incentives, could
ensure the balancing of protection and sharing that increases individual and societal
welfare. Privacy is a multi-faceted concept from marketing to economics to computer
science. While this study is certainly not exhaustive, we believe it highlights some of
the most relevant historical and current research on the topic. It is, however, abundantly
evident that protection of personal privacy is rapidly emerging as one of the most
 significant public policy issues, and research on the economics of privacy will,
therefore, continue to expand and evolve in coming years.

D. Social networking sites impact

Social media is an internet based form of communication. Many other forms of social
media like blogs, micro-blogs, wikis social networking sites, widgets, virtual worlds
also exist. But social networking sites such as Facebook, Twitter, WhatsApp, Orkut and
Myspace have become voguish in the past few years. But in order to use a social
networking site and descry other people posts the person has to first create a profile.
The main purpose of these social networking sites is to establish a kinship in the virtual
world. But little did the users know that this boon was accompanied by crime too.The
concept of cybercrime emerged during 1990’s and has climbed the ladder of success
reaching to a whole new level. But it is us who have signed the deal with the devil and
now our privacy has been compromised. IP address, key words used in searches,
websites visited which seem harmless, from information that we share on social media,
to online transactions, to cookies collecting user browser history, to mobile registration-
personal details about an individual is engendered by each use of internet. The site
instantly records our personal details like in Amazon.in case. They do it so because,
the more personal information they provide, the more attractive they are to potential
advertisers. As a result, cases of identity thefts, sexual predators, unintentional fame,
cyber staking and defamation have started to gain focus. People have also been reported
of committing suicide after their humiliating videos had been uploaded on YouTube.
This lack of lucency of the social networking sites and the day to day crimes taking
place in the cyberspace have forced us to critically think what we really want to share
and how our information is being handled. Therefore, the privacy policies should be
read very carefully before giving our consent. However, Facebook has helped by
introducing options of blocking, reporting, protect etc. Twitter has the option of sharing
information only with followers.

Indian Legislation on Social Media Privacy and Data Protection

With the debut of social media, a new term of Internet privacy has come into lime-light.
There is no specific legislation on Internet privacy and data protection. However, our
constitution has provided Article 21 as a privacy lock which is insufficient to provide
adequate protection to the data.
However in the year 2000, legislature made effort to embrace social media privacy
issues and currently India’s most comprehensive legal provisions that speaks of privacy
on the Internet is the Information Technology Act, 2000. Even though it cannot
completely safeguard the privacy, it can dilute it to an extent. Provisions that clearly
protect user privacy include Section 43, 66, 66F and 67 of the Information Technology
Act, 2000 and also the rules of the Act. Violation of privacy in India is increasing
alarmingly. It is high time India should prioritize privacy as national issue.