CASE COMMENT

Name of the Case: Justice K.S.Puttaswamy (Retired) vs. Union of India and Ors, 2017.

Citation: Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1

Court: Supreme Court of India

Parties Involved:

Appellant: Justice K S Puttaswamy (Retired)

Respondent: Union of India and Others.

Bench: Sanjay Kishan Kaul, Dhananjaya Y. Chandrachud, R. K. Agrawal, J. S. Khehar, S. A.

Bobde, S. A. Nazeer, R. K. Agrawal, J. Chelameswar, A.M. Sapre JJ.

Introduction:

This case is a landmark judgment concerning the right to privacy, challenging the validity of the
Aadhaar. The Aadhaar is a 12 digit unique identity number that can be obtained by citizens of
India, based on their biometric and demographic data. The data is collected by UIDAI (Unique
Identification Authority of India), a statutory authority established in January 2009 by the
Government of India, under the Ministry of Electronics And Information Technology. The
Aadhaar card contains details such as Name, Date of Birth, Aadhaar Number, Gender,
photograph, Residential Address, and QR code representing the Aadhaar. The principle purpose
of Aadhaar is to empower the State to distribute the available resources to the underprivileged
masses, ensuring that these valuable resources are not misused by those who already have the
means to use these resources.

This judgment is important as it deals with a right which is so precious to every individual. No
individual would appreciate unnecessary intervention by others in their personal lives. We live in
an interconnected world where we find we find technology at work in every inch of our lives,
which desperately calls for a development in protecting the privacy of individuals.
Brief Facts:

A retired High Court Judge K.S Puttaswamy filed a petition in the Supreme Court in 2012
against the Union of India challenging the constitutionality of Aadhaar on the ground that it
violated an individual’s right to privacy. In the public interest litigation, the petitioners
specifically challenge the ground that it violates the fundamental rights of the citizens of the
country. More than a billion Indians have so far been registered in the Aadhaar programme,
which sees citizens issued with a 12-digit number that aligns to specific biometric data such as
eye scans and fingerprints. Registration is now become mandatory for filing tax returns, opening
bank accounts, securing loans, buying and selling property or even making purchases of 50,000
rupees and above. Many orders were passed from time to time but in 2016 with the enactment of
the Aadhaar Act, these petitioners filed a new petition challenging the Aadhaar Act. In mid-2017
the former Union Minister and the congress leader Jairam Ramesh approached the Supreme
Court challenging the decision to treat the Aadhaar Bill as the money Bill. Finally on August 24,
2017, a nine judge bench of apex court giving the verdict that the right to privacy considered to
be a fundamental right under Article 21 of the Constitution of India.

Issues:

1. Whether the ‘right to privacy’ is an intrinsic right under the ‘right to life and personal liberty
under Article 21 and the various other freedoms enshrined under Part III of the Indian
Constitution?

2. Whether the decision made by the Court in M. P. Sharma and Others v Satish Chandra,
District Magistrate, Delhi, and Others1 and Kharak Singh vs. The State of U.P2 is correct in law?

Appellant’s Argument:

It was argued from the side of the appellant before the court that the right to privacy is 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 and same is to be protected by the
constitution of India. They also questioned the correctness of the decision noted in Kharak Singh
vs. The state of Uttar Pradesh and M. P. Sharma vs. Satish Chandra on the ground that it violates
the Right to Privacy under Article 21 of the constitution.

Respondent’s Argument:

It was argued from the side of the respondent before the court that the constitution of India does
not specifically protect the right to privacy and on this ground the right to privacy is not involved
under Article 21 of the Constitution of India. They take refuge under the principles which were
held in the cases of M.P Sharma and Kharak Singh which contained observations that the Indian
Constitution does not specifically protect the right to privacy.

Judgement and Reasoning:

The case came before a three judge Bench of the Court which, on 11th August 2015, ordered that
the matter should be referred to a larger Bench of the Court. On 18th July 2017, a five judge
Constitution Bench ordered the matter to be heard by a nine judge Bench and the Judgment was
delivered on 24th August , 2017.

 J.Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer)

was of the view that there was a need for the Constitution to evolve to face the
challenges that an individual may come across in an age where technology
governs virtually every aspect of our lives. It is imperative for the Courts to
impart meaning to the concept of individual liberty, particularly where an
overarching presence of State and non-State entities regulates aspects of social
existence which bear upon the freedom of an individual. Every individual
irrespective of social or economic status is entitled to the intimacy and autonomy
which privacy protects.

 J. Chelameswar was of the opinion that among basic rights conferred on

individuals by the Constitution as a shield against excesses by the State, some
rights are at the core of human existence. Thus, they are granted the status of
fundamental, inalienable rights essential to enjoy liberty. Liberty is the freedom of
 an individual to do what he pleases and the exercise of that freedom would be
meaningless in the absence of privacy.

 J. Bobde was of the opinion that natural rights are those rights which protect the
moral rights which are inbuilt in human existence. The dignity and autonomy of
an individual over themselves are safeguarded moral values, thereby making
privacy a natural and inalienable right. It must be elevated to the status of a
fundamental right and granted constitutional protection irrespective of whether it
is legal or common law right.

 J. Nariman in his concurring opinion, classified the facets of privacy into non-
interference with the individual body, protection of personal information and
autonomy over personal choices. He was of the opinion that The three great
dissents of Fazl Ali J. in A.K. Gopalan, Subba Rao J. in Kharak Singh, and
Khanna J. in ADM Jabalpur indicate the true meaning of Article 21. The
dissenting opinion of Subba Rao J. in particular has a direct bearing on privacy. It
records that the right to life and personal liberty under Article 21 includes the
right to be free from encroachments in private life, and even in the absence of an
express right to privacy in the Constitution, it is an essential ingredient of personal
liberty.

 J. Sapre was of the opinion that the right to privacy is an inherent, inalienable
and multifaceted right of an individual enabling the enjoyment of a meaningful
life with dignity and must be recognised and cherished in every society governed
by Rule of Law. It emanates from Articles 21 and 19 as well as the Preamble.
However, this right is subject to reasonable restrictions which the State is entitled
to impose by law, to protect social, moral and compelling public interest.
  J. Kaul discussed the right to privacy with respect to protection of informational
privacy and the right to preserve personal reputation. He said that the law must
provide for data protection and regulate national security exceptions that allow for
interception of data by the State.

Decision that has been passed by all nine judges holds:

(i) The decision in M P Sharma vs. Satish Chandra which holds that the right to
privacy is not protected by the Constitution of India stands over-ruled;

(ii) The decision in Kharak Singh vs. State of UP to the degree that it holds that
the right to privacy is not protected by the Constitution also stands over-ruled;

(iii) The right to privacy is protected as an intrinsic part of the right to life and
personal liberty under Article 21 of the constitution of India and as a part of the
freedoms guaranteed by Part III of the Constitution.

Critical Analysis:

Broadly, the promise of the Aadhaar scheme was to ensure efficient, transparent, and targeted
delivery of subsidies, benefits and services by the government of India in its quest for the elusive
idea of good governance. The constitutional validity of this Act was challenged by several
individuals and organisations. One of the main challenges to the Act was that it violated a
fundamental right to privacy of Indian citizens. But, the Aadhaar scheme was one of the most
ambitious projects of the Government of India. Launched with the sole purpose of empowering
the marginalized section of the society, it was initiated as a scheme to provide a unique
identification number for every citizen in India This scheme gave way to many privacy rights
battles. The question of dignity, informational self-determination and consent formed the basis
for the privacy rights claims surrounding the Aadhaar scheme.
Conclusion:

This landmark decision has been used as a precedent in landmark cases such as Navtej Johar v.
Union of India 3(decriminalising Section 377) and Joseph Shine v. Union of India4
( decriminalising adultery). Though this was a judgment through the which the judges passed a
unanimous judgment quoting the works of many famous jurists regarding privacy, the right to
privacy like every other freedom is not absolute but comes with certain restrictions in the interest
of individual and national security.
1
AIR 1954 SC 300
2
AIR 1963 SC 1295
3
AIR 2018 SC 4321
4
AIR 2018 SC 1676