Justice K S Puttaswamy (Retd.), and Anr. v. Union of India and Ors.
- ByPravleen Kaur --
- 07 May 2025 --
- 0 Comments
I. Introduction
A. Brief background on the legal case
The legal case at hand is a landmark judgment delivered by a nine-judge constitutional bench of the Supreme Court of India on the issue of whether the right to privacy is a fundamental right protected by the Indian Constitution. The case arose from a batch of petitions challenging the constitutional validity of the Aadhaar card scheme, a biometric identification program launched by the Government of India.
One of the key grounds of challenge against the Aadhaar scheme was that the collection and compilation of demographic and biometric data by the government violated an individual's right to privacy. Initially, a three-judge bench was considering the matter when it realized the need to revisit and re-evaluate two previous Supreme Court judgments – M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of U.P. (1964) – which had held that the Indian Constitution did not explicitly guarantee a fundamental right to privacy.
Given the far-reaching implications of the issue and the need to settle the legal position authoritatively, the three-judge bench referred the matter to a larger constitutional bench of nine judges. The primary question before the nine-judge bench was whether the right to privacy is a constitutionally protected fundamental right under the Indian Constitution.
B. Significance of the judgment on the right to privacy
The judgment holds immense significance as it addresses a crucial aspect of individual liberty and autonomy in the digital age. The recognition of the right to privacy as a fundamental right has wideranging implications for various aspects of an individual's life, including personal choices, family matters, data protection, and the relationship between the individual and the state.
The judgment is also significant from a constitutional perspective as it re-evaluates and overrules (in part) the earlier decisions in M.P. Sharma and Kharak Singh, which had denied the existence of a fundamental right to privacy under the Indian Constitution. By recognizing privacy as a constitutionally protected right, the Supreme Court has expanded the scope of fundamental rights and liberties enshrined in the Constitution.
Furthermore, the judgment has far-reaching implications for various laws, policies, and government programs that may potentially infringe upon an individual's right to privacy. It sets the stage for a comprehensive legal framework to protect personal data and regulate the collection, processing, and dissemination of such data by both state and non-state actors.
Overall, the judgment is a landmark development in the evolution of constitutional jurisprudence in India, aligning the country's legal framework with international human rights standards and addressing the challenges posed by technological advancements in the digital age.## Historical Perspective
A. Early Supreme Court decisions: M.P. Sharma and Kharak Singh
1. Rejection of a constitutional right to privacy
In the early years after the adoption of the Indian Constitution, the Supreme Court rejected the idea of a constitutionally protected right to privacy. Two landmark decisions, M.P. Sharma v. Satish Chandra (1954) and Kharak Singh v. State of Uttar Pradesh (1964), played a crucial role in shaping the initial jurisprudence on this issue.
In M.P. Sharma, an 8-judge bench of the Supreme Court considered whether the search and seizure of documents from the accused violated their right against self-incrimination under Article 20(3) of the Constitution. The Court held that the act of search and seizure did not amount to testimonial compulsion and, therefore, did not violate Article 20(3). More significantly, the Court observed that the Constitution makers had not thought it fit to subject the power of search and seizure to constitutional limitations by recognizing a fundamental right to privacy, analogous to the Fourth Amendment of the U.S. Constitution.
In Kharak Singh, a 6-judge bench dealt with the constitutionality of police regulations that allowed for surveillance measures, including domiciliary visits at night. The majority (4:2) struck down the provision allowing nocturnal home visits as violative of the right to life and personal liberty under Article 21. However, the majority also held that the right to privacy was not a guaranteed right under the Indian Constitution.
These two decisions effectively rejected the existence of a constitutionally protected right to privacy in India, at least in the context of search, seizure, and surveillance measures.
2. Criticism of the decisions
The decisions in M.P. Sharma and Kharak Singh have been subject to significant criticism over the years:
1. Narrow interpretation: The decisions adopted a narrow interpretation of fundamental rights, confining them to specific provisions rather than recognizing their broader scope and interrelationship.
2. Outdated jurisprudence: The decisions were based on the then-prevailing jurisprudence of treating fundamental rights as isolated silos, as propounded in the case of A.K. Gopalan v. State of Madras (1950). This approach was later overruled by the landmark judgments in R.C. Cooper v. Union of India (1970) and Maneka Gandhi v. Union of India (1978), which established that fundamental rights must be read together and not in isolation.
3. Failure to consider international human rights instruments: The decisions did not take into account the Universal Declaration of Human Rights (1948) and other international instruments that recognized the right to privacy as a fundamental human right.
4. Inconsistency within Kharak Singh: The majority judgment in Kharak Singh exhibited an internal inconsistency. While striking down domiciliary visits at night as violative of personal liberty, it simultaneously held that the right to privacy was not a guaranteed right under the Constitution.
5. Evolving societal values: The decisions failed to appreciate the evolving societal values and the increasing importance of privacy in a modern democratic society.
Over time, subsequent judgments of the Supreme Court have recognized the right to privacy as a fundamental right, either as an emanation from other expressly guaranteed rights or as an integral part of the right to life and personal liberty under Article 21. The decisions in M.P. Sharma and Kharak Singh have been criticized for their narrow interpretation and have been gradually eroded by the Court's evolving jurisprudence on the right to privacy.## III. Evolution of Privacy as a Fundamental Right
A. Dissenting voices: Justices Fazl Ali, Subba Rao, and Khanna
The majority decisions in M.P. Sharma and Kharak Singh, which held that there is no explicit right to privacy under the Indian Constitution, were not unanimous. Several dissenting voices emerged, laying the groundwork for the eventual recognition of privacy as a fundamental right.
Justice Fazl Ali, in his dissenting opinion in Kharak Singh, argued that the concept of "personal liberty" in Article 21 is comprehensive and includes all varieties of rights that go to make up personal liberty. He contended that the right to privacy is an essential ingredient of personal liberty, and any act that violates the privacy of an individual would be an infringement of the personal liberty guaranteed by Article 21.
Justice Subba Rao, in his dissenting judgment in Kharak Singh, took a broader view of the fundamental rights enshrined in the Constitution. He argued that the fundamental rights should not be considered as distinct and mutually exclusive rights but rather as a unified whole. He emphasized that the right to personal liberty takes in not only a right to be free from physical restraint but also the right to enjoy all the legitimate activities that constitute the dignity of life.
Justice Khanna, in his dissenting opinion in Gobind v. State of M.P., echoed similar sentiments. He recognized the right to privacy as a fundamental right and stated that the right to privacy is an essential ingredient of personal liberty. He argued that the right to privacy is not an absolute right but must be subject to restrictions based on compelling public interest.
These dissenting voices laid the foundation for the subsequent evolution of the right to privacy as a fundamental right in Indian jurisprudence.
B. Interrelationship between fundamental rights: R.C. Cooper and Maneka Gandhi
Two landmark judgments, R.C. Cooper v. Union of India and Maneka Gandhi v. Union of India, played a pivotal role in recognizing the interrelationship between fundamental rights and paved the way for the recognition of the right to privacy.
In R.C. Cooper, the Supreme Court rejected the narrow interpretation of fundamental rights adopted in A.K. Gopalan v. State of Madras. The Court held that the fundamental rights enshrined in the Constitution are not isolated silos but are interrelated and interdependent. This opened the door for the recognition of unenumerated rights that may be derived from the express guarantees of the Constitution.
In Maneka Gandhi, the Supreme Court further expanded the scope of fundamental rights by adopting a broader interpretation of the term "personal liberty" under Article 21. The Court held that the procedure established by law for depriving a person of personal liberty must be fair, just, and reasonable, and not arbitrary or oppressive. This landmark judgment laid the groundwork for recognizing the right to privacy as an integral part of the right to personal liberty under Article 21.
C. Subsequent Supreme Court decisions recognizing the right to privacy
Building upon the foundations laid by the dissenting voices and the judgments in R.C. Cooper and Maneka Gandhi, several subsequent Supreme Court decisions recognized the right to privacy as a fundamental right, either as an independent right or as an essential ingredient of other fundamental rights.
In Gobind v. State of M.P., the Supreme Court acknowledged the existence of a right to privacy, although it did not explicitly declare it as a fundamental right. The Court recognized that the right to privacy is an essential ingredient of personal liberty and that any invasion of privacy must be justified by a compelling state interest.
In Rajagopal v. State of Tamil Nadu, the Supreme Court explicitly recognized the right to privacy as a fundamental right, stating that the right to privacy is implicit in the right to life and personal liberty guaranteed by Article 21. The Court held that the right to privacy includes the right to be left alone and the right to safeguard the privacy of personal intimacies, family relationships, and communications.
In People's Union for Civil Liberties v. Union of India, the Supreme Court reiterated the recognition of the right to privacy as a fundamental right and emphasized that the right to hold a telephone conversation in privacy is a part of the right to privacy.
These decisions, along with several others, firmly established the right to privacy as a fundamental right in Indian jurisprudence, either as an independent right or as an essential component of other fundamental rights, such as the right to life and personal liberty under Article 21.# IV. Jurisprudential Basis for the Right to Privacy
A. Natural and Inalienable Rights
Privacy is considered a natural and inalienable right, inherent to human beings by virtue of their existence. The concept of natural rights stems from the idea that certain rights are not bestowed by the State but are intrinsic to human beings because they are human. These rights are inalienable, meaning they cannot be taken away or transferred to others.
The human element in life is impossible to conceive without the existence of natural rights. Natural rights protect the autonomy of individuals to make choices and preserve their liberty, while recognizing that this autonomy is not absolute. Certain rights, such as the right to life or the right to privacy, are considered so fundamental that no human being can alienate or waive them.
The development of the concept of natural and inalienable rights in the Indian context can be traced back to the drafting of the Constitution. The framers recognized the need to preserve and protect these inherent rights, which formed the foundation of the fundamental rights enshrined in Part III of the Constitution.
B. Dignity and Personal Liberty
The right to privacy is closely intertwined with the concepts of human dignity and personal liberty. Privacy is considered essential for the exercise of personal liberty and the realization of human dignity.
The Constitution of India recognizes the right to life and personal liberty under Article 21. The Supreme Court has interpreted this right broadly, holding that it encompasses not just mere animal existence but also the right to live with dignity. Privacy is seen as an integral part of this right, as it enables individuals to exercise their freedoms and develop their personalities without undue interference.
The Court has recognized that privacy is necessary for both the mental and physical aspects of personhood. It allows individuals to maintain their autonomy, make intimate decisions, and preserve their thoughts and beliefs without external scrutiny. Privacy is thus considered a prerequisite for the enjoyment of other fundamental rights and freedoms guaranteed by the Constitution.
C. International Human Rights Instruments
The right to privacy has been recognized and affirmed in various international human rights instruments, which have influenced the interpretation and understanding of this right in the Indian context.
The Universal Declaration of Human Rights (UDHR), to which India is a signatory, recognizes privacy as an international human right. Article 12 of the UDHR states: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
Other international instruments, such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR), also enshrine the right to privacy and have influenced the development of privacy jurisprudence in various jurisdictions.
The Supreme Court has recognized the importance of these international instruments and has relied on them to interpret and expand the scope of fundamental rights, including the right to privacy, in the Indian context.
In summary, the jurisprudential basis for the right to privacy in India is rooted in the concepts of natural and inalienable rights, human dignity, personal liberty, and the recognition of privacy as a fundamental human right in international human rights instruments. The Supreme Court has drawn upon these principles to establish privacy as a constitutionally protected right in India.# V. Contours and Scope of the Right to Privacy
A. Informational Privacy
The age of information has resulted in complex issues for informational privacy. Information has three facets: it is non-rivalrous, invisible, and recombinant. Information is non-rivalrous in the sense that there can be simultaneous users of the same information – use of a piece of information by one person does not make it less available to another. Secondly, invasions of data privacy are difficult to detect because they can be invisible. Information can be accessed, stored, and disseminated without notice. Its ability to travel at the speed of light enhances the invisibility of access to data. Thirdly, information is recombinant in the sense that data output can be used as an input to generate more data output.
Formulation of a regime for data protection is a complex exercise that needs to be undertaken by the State after carefully balancing the requirements of privacy coupled with other values that the protection of data sub-serves, together with the legitimate concerns of the State. While intervening to protect legitimate state interests, the State must nevertheless put in place a robust regime that ensures the fulfillment of a three-fold requirement:
1. There must be a law in existence to justify an encroachment on privacy, as per the express requirement of Article 21.
2. The requirement of a legitimate state aim ensures that the nature and content of the law imposing the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary state action.
3. The means adopted by the legislature must be proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.
Apart from national security, the State may have justifiable reasons for the collection and storage of data, such as ensuring that scarce public resources are not diverted from legitimate beneficiaries in a social welfare state. However, the data collected by the State must be utilized only for legitimate purposes and not for extraneous purposes, safeguarding both the legitimate concerns of the State and privacy concerns.
B. Spatial Privacy
Spatial privacy is reflected in the privacy of a private space through which access of others can be restricted to the space. Intimate relations and family life are apt illustrations of spatial privacy. The right to privacy has its foundation in the instincts of nature, and every individual recognizes that there are matters private and matters public as far as the individual is concerned.
The non-consensual revelation of personal information such as the state of one's health, finances, place of residence, location, daily routines, and so on effaces one's sense of personal and financial security. Privacy lets people protect themselves from troublesome judgments by others.
C. Limitations and Reasonable Restrictions
The right to privacy is not absolute. Like the right to life and personal liberty, privacy is not absolute, and the limitations that operate on the right to life and personal liberty would also operate on the right to privacy. Any curtailment or deprivation of the right to privacy would have to take place under a regime of law. The procedure established by law must be fair, just, and reasonable. The law that provides for the curtailment of the right must also be subject to constitutional safeguards. The right to privacy may be limited based on legitimate state interests, such as national security, public interest, prevention and investigation of crime, protection of revenue, and ensuring the proper allocation of resources in a social welfare state. However, such restrictions must satisfy the principle of proportionality, ensuring that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.
The concerns about privacy have been left unattended for quite some time, and an infringement of the right to privacy cannot be left to be formulated solely by the legislature. Privacy is a primal natural right inherent to an individual, and it is being recognized as a fundamental right falling under Part III of the Constitution of India.# VI. Implications and Way Forward
A. Impact on existing laws and regulations
The Supreme Court's recognition of the right to privacy as a fundamental right under the Constitution will have significant implications for existing laws and regulations in India. Several laws that involve the collection, processing, and sharing of personal data may need to be re-examined and potentially amended to ensure compliance with the newly affirmed constitutional right to privacy.
For instance, laws such as the Information Technology Act, 2000, which deals with cybercrime and electronic commerce, and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which mandates the collection of biometric data for the issuance of a unique identification number, may need to be revisited. These laws, and others like them, will have to be scrutinized to ensure that the provisions related to data collection, storage, and sharing are in line with the principles of privacy laid down by the Supreme Court.
Additionally, existing regulations and policies governing various sectors, such as telecommunications, banking, healthcare, and ecommerce, which involve the handling of personal data, may also require modifications to align with the Supreme Court's directives on privacy.
B. Challenges in balancing privacy with other interests
While the Supreme Court has affirmed the fundamental right to privacy, it has also acknowledged that this right is not absolute and can be subject to reasonable restrictions. The challenge lies in striking a balance between protecting an individual's right to privacy and other legitimate state interests, such as national security, prevention and investigation of crime, and the promotion of innovation and dissemination of knowledge.
Policymakers and lawmakers will face the daunting task of carefully weighing the competing interests and crafting laws and regulations that uphold the right to privacy while also addressing other crucial concerns. This balancing act will require a nuanced approach, taking into account the specific context and circumstances of each case.
For instance, in the realm of national security, the state may need to employ surveillance measures or collect personal data to counter threats such as terrorism or cyber attacks. However, such measures must be proportionate and subject to appropriate safeguards to prevent excessive intrusion into an individual's privacy.
Similarly, in the field of healthcare, the sharing of personal medical data may be necessary for research purposes or to facilitate better treatment, but robust data protection mechanisms must be in place to ensure that sensitive information is not misused or disclosed without consent.
C. Future developments and case-by-case evolution
The Supreme Court's judgment on the right to privacy is a landmark decision, but it is also the beginning of a long journey. The contours of this right and its practical implications will continue to evolve through future judicial pronouncements and legislative actions.
As new technologies emerge and societal norms shift, the interpretation and application of the right to privacy will likely undergo further refinement. The Supreme Court has acknowledged that the right to privacy is not absolute and that its boundaries will need to be defined on a case-bycase basis, taking into account the specific circumstances and competing interests involved.
Future cases brought before the courts may address various aspects of privacy, such as data protection, surveillance, bodily integrity, and the right to be forgotten, among others. These cases will provide opportunities for the judiciary to further clarify the scope and limitations of the right to privacy, and to establish guidelines for balancing this right with other legitimate concerns.
Additionally, the Supreme Court has called upon the Union Government to examine and put in place a robust regime for data protection, recognizing the importance of safeguarding informational privacy in the digital age. The formulation of such a regime will require extensive deliberation and consultation, taking into account international best practices and the unique challenges faced by India.
In conclusion, the Supreme Court's recognition of the right to privacy as a fundamental right is a significant milestone, but it is also the beginning of a complex journey. The impact on existing laws and regulations, the challenges in balancing privacy with other interests, and the future developments and case-by-case evolution will shape the practical implementation and interpretation of this right in the years to come.# VII. Conclusion
A. Significance of the Judgment
This landmark judgment by the Supreme Court of India is of profound significance for the constitutional jurisprudence of the country and the rights of citizens. By recognizing the right to privacy as a fundamental right emanating from Articles 14, 19, and 21 of the Constitution, the Court has reinforced the core values of human dignity, liberty, and autonomy that underpin India's democratic framework.
The judgment is a resounding affirmation of the individual's inviolable right to determine their personal affairs and make intimate decisions without unwarranted interference from the state or non-state actors. It acknowledges that privacy is not merely a privilege for the elite but an inalienable entitlement that cuts across social strata, enabling every individual to exercise their freedoms and liberties in a meaningful way.
Furthermore, the Court's decision has far-reaching implications for various aspects of life, such as personal relationships, reproductive choices, gender identity, and data protection. It provides a robust constitutional foundation for safeguarding individual autonomy and preventing intrusions into the private sphere by the government or private entities.
By overruling the flawed precedents set in the ADM Jabalpur and Suresh Koushal cases, the Court has corrected historical wrongs and realigned the jurisprudence with the core principles of human rights and civil liberties enshrined in the Constitution.
B. Privacy as an Essential Aspect of Human Dignity and Liberty
The judgment eloquently articulates the intrinsic link between privacy, human dignity, and liberty. It recognizes that privacy is not merely a narrow concept but a multifaceted right that encompasses various aspects of an individual's life, including bodily integrity, personal autonomy, informational self-determination, and the freedom to make intimate choices.
The Court has emphasized that privacy is not an elitist construct but a fundamental condition for the full realization of human dignity and the exercise of personal liberty. It is an indispensable prerequisite for individuals to develop their personalities, nurture relationships, and pursue their legitimate goals without undue interference or scrutiny.
By acknowledging privacy as a natural and inalienable right that predates the Constitution, the Court has affirmed its primordial character and elevated its status to that of a core constitutional value. The judgment recognizes that privacy is not merely a derivative right but an essential facet of human existence, inextricably linked to the pursuit of happiness, self-fulfillment, and the realization of one's full potential.
The Court's recognition of privacy as a fundamental right is a testament to the evolving nature of constitutional interpretation and the need to adapt to the changing realities of society. It underscores the dynamic character of the Constitution and its ability to respond to contemporary challenges while upholding the cherished values of individual liberty and human dignity.
In essence, this landmark judgment represents a significant stride towards fortifying the constitutional foundations of personal freedom, safeguarding individual autonomy, and ensuring that the rights and liberties enshrined in the Constitution are not mere abstractions but living realities for every citizen of India.
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