DAMODARAM SANJIVAYYA NATIONAL LAW

UNIVERSITY
VISAKHAPATNAM, A. P., INDIA.

PROJECT TITLE:

ARTICLE 21: FOCUSING ON RIGHT TO PRIVACY

SUBJECT:

CONSTITUTIONAL LAW

NAME OF THE FACULTY:

MR. NAGESHWAR RAO

NAME OF THE STUDENT:

AKHIL H KRISHNAN

ROLL NO:

18LLB005

SEMESTER – III

SECTION – A
 ACKNOWLEDGMENT

I am highly indebted to my Hon’ble constitutional law faculty, Mr.A. Nageswar Rao, for giving
me a wonderful opportunity to work on the topic: “Article 21 focusing on right to privacy”, and
it is because of his excellent knowledge, experience and guidance, this project is made with great
interest and effort. I would also take this as an opportunity to thank my parents for their support
at all times. I have no words to express my gratitude to each and every person who has guided
and suggested me while conducting my research work.
 ABSTRACT
ARTICLE 21; FOCUSING ON RIGHT TO PRIVACY

Article 21 of the Indian constitution speaks about Protection of life and personal liberty. It says
that, “No person shall be deprived of his life or personal liberty except according to procedure
established by law.” The ambit of this Article is so wide that the two words ‘Life’ and ‘Liberty’
includes myriad concepts like right to live with human dignity, right to livelihood, right to health,
right to pollution free air, Right Against Sexual Harassment at Workplace, Right to Clean
Environment, Right Against Noise Pollution, Right to Privacy, Right against Handcuffing,
Right to Fair Trial, Right against Solitary Confinement, Right against Custodial Violence
etc.
According to Black’s Law Dictionary Right to Privacy is the “right to be let alone; the right of a
person to be free from any unwarranted publicity; the right to live without any unwarranted
interference by the public in matters with which the public is not necessarily concerned”.
Recently, a judgment was delivered by Justice D.Y. Chandrachud that overruled the principles
evolved in the Habeas Corpus case in the case of Justice K.S. Puttaswamy and ors. v. Union of
India, which evolved as a landmark judgment in the history of India with regards to the status of
Right to Privacy. This project will discuss the evolution of Right to Privacy as a fundamental
right from its previous status.

This project will REFER to the cases like,

1. Kharak singh v. State of UP 1963 AIR 1295
A minority opinion recognized the right to privacy as a fundamental right. The minority
judges said that right to privacy was both the right to personal liberty and freedom of
movement as well.
2. Govind v. State of Madhya Pradesh 1975 AIR 1378
In this case, the SC confirmed that the right to privacy is a fundamental right. The right
was said to include and protect personal intimacies of the home, marriage, family,
motherhood, etc. but it also observed that it was subject to “compelling state subject”.
3. R. Rajagopal v. State of T N 1995 AIR 264
The apex court said that the right is a part of the right of a personal to personal liberty
that is guaranteed under the Constitution. It further recognized that the right to privacy
can be both an actionable claim and also a fundamental right.
4. People's Union Of Civil Liberties v Union Of India & Anr AIR 1997 SC 568
 This case before the Supreme Court extended the right to privacy to communications.
The court laid down regulations in interception provisions in the country like such orders
were to be issued by the home secretaries only, necessity of the information was the
considered, etc. Further it capped two months onto the life of an interception order.

5. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. 6 SCC 433
A nine-judge Constitution bench of the Supreme Court ruled that Right to Privacy is a
fundamental right.

AKHIL H KRISHNAN

2018005

SEM III
 CASES REFERED

1. Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. 6 SCC 433

2. M.P. Sharma v. Satish Chandra

3. Kharak Singh v. State of U.P.

4. Kesavananda Bharati v. State of Kerala

5. Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 1 SCC

608

6. A K Gopalan v. State of Madras, 1950 SCR 88

7. R C Cooper v. Union of India, 1970 SCR (3) 530.

8. Maneka Gandhi v. Union of India, 1978 SCR (2) 621.

9. Munn v. Illinois

10. ADM Jabalpur v. Shivkant Shukla

11. Katz v. United States, 389 US 347 (1967).

12. Collector v. Canara Bank, (2005) 1 SCC 496

13. Suchita Srivastava v Chandigarh Administration, AIR 2010 SC 235.

14. Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, AIR 2008 SC 1892.
15. National Legal Services Authority (NALSA) v Union of India, AIR 2014 SC
1863.

16. Suresh Kumar Koushal v NAZ Foundation, (2014) 1 SCC 1.

17. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722

18. Superintendent, Central Prison v. Dr Ram Manohar Lohia, AIR 1960 SC 633

19. Virendra Ojha v. State of Madhya Pradesh, AIR 2003 All 102

20. Govind v. State of Madhya Pradesh 1975 AIR 1378

21. R. Rajagopal v. State of T N 1995 AIR 264

 THE AADHAR JUDGEMENT AND RIGHT TO PRIVACY

In 2012, Justice K S Puttaswamy, a former Karnataka High Court Judge, filed a

petition before the Supreme Court questioning the validity of the Aadhaar project
due its lack of legislative basis (since then the Aadhaar Act was passed in 2016)
and its transgressions on our fundamental rights. Over time, a number of other
petitions also made their way to the apex court challenging different aspects of the
Aadhaar project. Since then, five different interim orders by the Supreme Court
have stated that no person should suffer because they do not have an Aadhaar
number. Aadhaar, according to the Supreme Court, could not be made mandatory
to avail benefits and services from government schemes. Further, the court has
limited the use of Aadhaar to only specific schemes, namely, LPG, PDS,
MNREGA, National Social Assistance Program, the Pradhan Mantri Jan Dhan
Yojna and EPFO.1
The then Attorney General, Mukul Rohatgi, in a hearing before the court in July,
2015, stated that there is no constitutionally guaranteed right to privacy. His
reliance was on two Supreme Court judgments in M P Sharma v. Satish Chandra,
and Kharak Singh v. State of Uttar Pradesh, both cases, decided by eight and six
judge benches respectively, denied the existence of a constitutional right to
privacy. As the subsequent judgments, which upheld the right to privacy were by
smaller benches, Mr. Rohatgi claimed that MP Sharma and Kharak Singh still
prevailed over them, until they were overruled by a larger bench. In order to clear
the judicial uncertainty around the existence of the right to privacy, the matter
was referred to a constitutional bench. Almost two years after the referral, the
constitutional bench was set up to adjudicate on this issue. The questions before
this bench were twofold:
1) Do the judgments in M.P. Sharma v. Satish Chandra2 and Kharak Singh v.
State of U.P.3 lead to the conclusion that there is no fundamental right to privacy,
2) Whether the decisions in the later cases upholding a right to privacy were
correct.

1
http://supremecourtofindia.nic.in/FileServer/2015-10-16_1444976434.pdf
2
AIR 1954 SC 30
3
AIR 1963 SC 1295.
 SOURCES OF RIGHT TO PRIVACY

Much of the debate and discussion in the hearings before the constitutional bench
was regarding where in the Constitution a right to privacy may be located.

1. PRIVACY AS A POSTULATE OF DIGNITY

Article 21 of the Constitution of India guarantees the right to life and liberty.
The judgment draws on the rich body of jurisprudence on Article 21 to
clearly articulate this.
a) The Preamble
As mentioned by Gautam Bhatia,4 a constitutional scholar, the common
thread that runs through the entire privacy judgment and the different
opinions is the primacy of the individual in the Constitution. In this
respect, Chandrachud J. states that “the individual lies at the core of
constitutional focus and the ideals of justice, liberty, equality and
fraternity animate the vision of securing a dignified existence to the
individual.” The judgment refers to Kesavananda Bharati v. State of
Kerala5 to emphasise that the Preamble is a part of the Constitution.
Dignity as a constitutional value is a very important element of the scheme
of protections offered in the Constitution to individuals. Nariman J. traced
the constitutional foundations of privacy to the Preamble stating as follow:
“The dignity of the individual encompasses the right of the individual
to develop to the full extent of his potential. And this development can
only be if an individual has autonomy over fundamental personal
choices and control over dissemination of personal information which
may be infringed through an unauthorized use of such information.”

b) Article 21
Over the course of the Supreme Court’s jurisprudence on the right to life and
liberty under Article 21, we see repeated allusions to ‘dignity’ and ‘life beyond
animal existence’ in order to expand the nature and scope of protection under
Article 21. The use of the dignity principle to configure the right to life is key to
the idea of Article 21 going beyond protection of limbs and faculties, the rather
the right to life included within its scope the ‘right to live with human dignity’.6
While the articulation of a normative framework to apply the concept of
4
Gautam Bhatia, “The Supreme Court’s Right to Privacy Judgment – I: Foundations”, Indian
Constitutional Law and Philosophy Blog, available at
https://indconlawphil.wordpress.com/2017/08/27/the-supreme-courts-right-to-privacy-judgment-i-
foundations/.
5
(1973) 4 SCC 225
6
Francis Coralie Mullin v Administrator, Union Territory of Delhi, (1981) 1 SCC 608
 ‘dignity’ has been missing, the courts have over the course of various cases,
creating an inclusive list to understand dignity, which includes the ability of
express oneself, nutrition and clothing.
Chandrachud J. thus, describes privacy as intrinsic to a dignity based idea of the
right to life:
“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. Privacy ensures the fulfilment of dignity and is a
core value which the protection of life and liberty is intended to
achieve…….The autonomy of the individual is associated over
matters which can be kept private. These are concerns over which
there is a legitimate expectation of privacy. The body and the mind
are inseparable elements of the human personality. The integrity of
the body and the sanctity of the mind can exist on the foundation
that each individual possesses an inalienable ability and right to
preserve a private space in which the human personality can
develop. Without the ability to make choices, the inviolability of the
personality would be in doubt.

Recognizing a zone of privacy is but an acknowledgment that each

individual must be entitled to chart and pursue the course of
development of personality. Hence privacy is a postulate of human
dignity itself.”

2. PRIVACY AS A SUBSET OF PERSONAL LIBERTY

Any discussion of the scope of protection offered by Article 21 is incomplete
without going back to the position in A.K.Gopalan7 which held that articles in Part
III occupied exclusive jurisdiction. Gopalan also involved a protracted discussion
on the contents of the rights under Article 21. Amongst the majority itself, the
opinion was divided. While Sastri J. and Mukherjea J. took the restrictive view
that limiting the protections to bodily restraint and detention, Kania J. and Das J.
take a broader view for it to include the right to sleep, play etc. Through RC
Cooper8 and Maneka9, the Supreme Court took steps to reverse the majority
opinion in Gopalan and it was established that that the freedoms and rights in
Part III could be addressed by more than one provision. The expansion of
‘personal liberty’ has began in Kharak Singh where the unjustified interference
with a person’s right to live in his house, was held to be violative of Article 21.

7
A K Gopalan v. State of Madras, 1950 SCR 88
8
R C Cooper v. Union of India, 1970 SCR (3) 530.
9
Maneka Gandhi v. Union of India, 1978 SCR (2) 621.
 The reasoning in Kharak Singh draws heavily from Munn v. Illinois10 which held
life to be “more than mere animal existence.” Curiously, after taking this position
Kharak Singh fails to recognise a fundamental right to privacy (analogous to the
Fourth Amendment protection in US) under Article 21. The position taken in
Kharak Singh was to extrapolate the same method of wide interpretation of
‘personal liberty’ as was accorded to ‘life’. Maneka which evolved the test for
enumerated rights within Part III says that the claimed right must be an
integral part of or of the the same nature as the named right. It says that the
claimed must be ‘in reality and substance nothing but an instance of the
exercise of the named fundamental right’.11 The clear reading of privacy into
‘personal liberty’ in this judgment is effectively a correction of the inherent
inconsistencies in the positions taken by the majority in Kharak Singh. This
passage in the judgment sums up the position of privacy as subset of personal
liberty:

“The ability of the individual to protect a zone of privacy enables

the realization of the full value of life and liberty. Liberty has a
broader meaning of which privacy is a subset. All liberties may not
be exercised in privacy. Yet others can be fulfilled only within a
private space.

Privacy enables the individual to retain the autonomy of the body

and mind.”

3. PRIVACY RESONATES THROUGH THE ENTIRETY OF PART III OF THE

CONSTITUTION (CHAPTER ON FUNDAMENTAL RIGHTS)

The decision to not ground privacy only within the ambit of a specific facet
of Article 21, but the court’s willingness to recognise the significance of
privacy to various other rights may prove to be the most important legacy of
the privacy judgment. The bench was assisted greatly by the well-reasoned
arguments made by the counsels arguing on behalf of the petitioners who
pointed the primacy of privacy to the values of autonomy, dignity and liberty,
but also to specific rights such as freedom of speech and expression, freedom
of While this reasoning is a logical extension of the constitutional principles
established in Cooper and Maneka that rights do not occupy separate and
exclusive fields, but could be addressed by multiple provisions, the decision
to extend this principle to the right to privacy is significant. It recognises the
magnified relevance of the right to privacy in light of the increasing
10
94 US 113 (1877).

11
Supra Note 9.
 incursions into private spaces of individuals by both public and private
actors, and the extent to which these intrusions compromise the autonomy of
an individual.
The following passage by Chandrachud J. sums up the significance of privacy
in the exercise of rights across Part III of the Constitution:
“The freedoms under Article 19 can be fulfilled where the individual is entitled to
decide upon his or her preferences. Read in conjunction with Article 21, liberty
enables the individual to have a choice of preferences on various facets of life
including what and how one will eat, the way one will dress, the faith one will
espouse and a myriad other matters on which autonomy and self-determination
require a choice to be made within the privacy of the mind. The constitutional
right to the freedom of religion under Article 25 has implicit within it the ability
to choose a faith and the freedom to express or not express those choices to the
world. These are some illustrations of the manner in which privacy facilitates
freedom and is intrinsic to the exercise of liberty. The Constitution does not contain
a separate article telling us that privacy has been declared to be a fundamental
right. Nor have we tagged the provisions of Part III with an alpha suffixed right of
privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy.
Both reside within the inalienable values of life, liberty and freedom which the
Constitution has recognised. Privacy is the ultimate expression of the sanctity of the
individual. It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice and self-
determination.”

4. INTERNATIONAL INSTRUMENTS

The Supreme Court of India has been remarkably receptive to the principles in
international law and has developed jurisprudence in active dialogue with
norms in international instruments. Article 51(c) of the Constitution directs the
State to ‘endeavour to’, inter alia, ‘foster respect for international law and
treaty obligations in the dealings of organised peoples with one another’.
Kesavananda Bharati is fairly instructive in its view that the court ‘must
interpret the language of the Constitution, if not intractable, which is after all a
municipal law, in the light of the United Nations Charter and the solemn
declaration subscribed to by India’. The courts have ‘incorporated’ international
conventions as well as treaties in several ways. This extends to not just treaties
which have been explicitly incorporated in the domestic law, but also to treaties
 which have not been incorporated.
The most obvious example of such principles being given effect is PUCL v.
Union of india12 in which the right to privacy was recoganised in the light of the
International Covenant on Civil and Political Rights 1966 (Article 17) and the
Universal Declaration of Human Rights 1948 (Article 12), to which India is a
party, both of which recognise a right to privacy. The ICCPR specifically casts an
obligation on the signatory states to to respect, protect and fulfil its norms. The
judgment also finds it relevant that while becoming a party to the ICCPR, India
filed reservations against Articles 1, 9 and 13, however, no such reservation was
filed against Article 17 and this indicates the acceptance of the right to privacy
and a commitment to respect and protect it. Therefore as stated in judgment:

“Where there is a contradiction between international law and a domestic statute,

the Court would give effect to the latter. In the present case, there is no
contradiction between the international obligations which have been assumed by
India and the Constitution.

The Court will not readily presume any inconsistency. On the contrary, constitutional
provisions must be read and interpreted in a manner which would enhance their
conformity with the global human rights regime. India is a responsible member of the
international community and the Court must adopt an interpretation which abides
by the international commitments made by the country particularly where its
constitutional and statutory mandates indicate no deviation.”

5. PRIVACY AS A NATURAL RIGHT

All the opinions, aside from that of Chelameswar J., recognise that privacy is a
natural right, which exists as an inalienable, inherent and inviolable rights of
individuals, and by that logic, predates and exist regardless of any other
constitutional provisions to the contrary. This opinion is buttressed by a very
belated, yet laudable overruling of the infamous majority opinion in ADM
Jabalpur v. Shivkant Shukla13. The majority position in ADM Jabalpur was that the
Constitution was the sole repository of fundamental rights when these rights are
suspended through a scheme provided for by the same Constitution, there was no
basis to claim those rights. This position has been expressly overruled by the
privacy judgment which advances the proposition that some rights are not
conferred by the Constitution, rather that Constitution merely recognizes what
already inheres in individuals. The position taken by Chelameswar J. is a little
different. Much like his brother judges, he recognizes the right to privacy as
12
Supra Note 5.
13
1976 SCR 172.
 fundamental and inalienable. However, instead to tracing this inalienable nature to
natural rights which may predate the constitutional protection, he seems to view
the Constitution as the source of these rights. Despite this distinction,
Chelameswar’ J’s opinion seems to agree to with the majority position that such
rights are ‘inalienable’, and therefore may not be taken away even through a
constitutional scheme.

TAXONOMIES OF PRIVACY

1. CLASSIFYING PRIVACY ON THE BASIS OF HARMS

The most prominent advocate of this approach cited in the judgment is Daniel Solove
who has argued fiercely against a unitarian concept. In his book, Understanding
Privacy, Daniel Solove makes a case for privacy being a family resemblance concept.
Responding to the discontent in conceptualizing privacy Solove attempted to ground
privacy not in a tightly defined idea, but around a web of diverse yet connected ideas.
Some of the diverse human experiences that we instinctively associate with privacy are
bodily privacy, relationships and family, home and private spaces, sexual identity,
personal communications, ability to make decisions without intrusions and sharing of
personal data. While these are widely diverse concepts, intrusions upon or interferences
with these experiences are all understood as infringements of our privacy. Accordingly,
Solove classifies activities that constitute privacy harms into:

i) ‘information collection’,

ii) ‘information processing’,

iii) ‘information dissemination’ and

iv) ‘invasion’.

This model while referenced in the judgment is not the most conducive for
the constitutional view of privacy. The acts of infringements of the
constitutional right to privacy need not be dependent on specific or
tangible harms for their invocation, the very act of intrusion into private
spaces is deemed as infringement of privacy without a need to establish
specific harm.14

14
(the pdf)
 2. CLASSIFYING PRIVACY ON THE BASIS OF INTERESTS

Gary Bostwick’s taxonomy of privacy is among the most prominent amongst the
scholarship that sub-areas within the right to privacy protect different ‘interests’
6
or ‘justifications’. This taxonomy is adopted in Chelameswar J.’s definition of
privacy and includes the three interests of privacy of repose, privacy of
sanctuary and privacy of intimate decision. Repose is the ‘right to be let alone’,
sanctuary is the interest which prevents others from knowing, seeing and hearing
thus keeping information within the private zone, and finally, privacy of
intimate decision protects the freedom to act autonomously. Chelameswar J.’s
reference to Bostwick’s taxonomy is interesting as the principles of repose and
sanctuary are considered to have limited constitutional protections in US by
Bostwick himself, as they arise between private parties.15

3. CLASSIFYING PRIVACY AS AN AGGREGATION OF RIGHTS

This is perhaps the most popular approach when it comes to classifying privacy as a right.
The judgment is full of references to scholars (Roger Clarke, Anita, Allen) and past
judgments that espouse this approach and look at privacy as an amalgamation of different but
connected rights. This approach clearly has had most relevance in articulating a structure of
the constitutional right to privacy in India, as can be gleaned through a study of the body of
case-law on privacy. Two notable decisions in the past in which this approach find resonance
is Gobind v. State of MP and Selvi v. State of Karnataka . In the right to privacy judgments as
well, the same approach is followed. The taxonomy and structure articulated by Mariyam
Kamil in classifying privacy into
a) physical privacy,
b) informational privacy and
c) decisional autonomy,
is instructive here and it is this structure which we see being reflected in this judgment as
well.

a) SPATIAL PRIVACY
In Gobind, the Supreme Court held that ‘personal intimacies of the home, the
family, marriage, motherhood, procreation and child rearing’ are protected by
privacy. Thus, private spaces or zones are clearly protected under the right to

15
(the pdf)
 privacy. The earlier conceptions of spatial privacy were propertarian. In the US,
prior to Katz16, the Fourth Amendment buttressed the common law of trespass,
which protected property against trespass. However, in Katz, the US Supreme
Court held that the Fourth Amendment protection extended not just to listed items
of property but extended to private zones where an individual had a reasonable
expectation of privacy. Thus, privacy was attached not to places, but to persons.
While considering the private and public realms of privacy, this judgment states as
follows:
“If the reason for protecting privacy is the dignity of the individual, the rationale
for its existence does not cease merely because the individual has to interact with
others in the public arena. The extent to which an individual expects privacy in a
public street may be different from that which she expects in the sanctity of the
home. Yet if dignity is the underlying feature, the basis of recognising the right to
privacy is not denuded in public spaces...Privacy attaches to the person and not to
the place where it is associated.”
The above passage makes its amply clear that privacy of space refers not only to a
propertarian view of privacy which emanates from a person’s physical spaces,
rather its basis is in the very personhood and rests in individuals in both private and
public spaces. The overruling of the Kharak Singh 17 is central to this point. The
majority in Kharak Singh ruled that the freedoms protected under Part III can be
said to be infringed only when the nature of infringement is direct and tangible, and
intangible curtailments such as psychological inhibitions do not amount to
infringements. Not only is the overruling of Kharak Singh and avowal of the
fundamental right to privacy, including but not limited to a protection against
search and seizure analogous to the Fourth Amendment, it is also a rejection of this
line of reasoning which restricts our freedoms and liberty as applicable against only
direct and tangible restrictions.
16
Katz v. United States, 389 US 347 (1967).
17
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295
 b) INFORMATIONAL PRIVACY
Informational privacy refers to the expectations of privacy that individuals have with
respect to information about them. It is inextricably linked to the idea of control that individuals
should have over their personal information. In the past also, the court has held in Canara Bank,18
that state actions to seek access to private documents must be subject to the standard of
‘reasonable cause’, or else it would be considered an infringement of privacy.

The other important observation in this case was that, since, privacy resided in persons and not
places, the disclosure of information to a third party does not stand as ground against the
presumption of right to privacy. This exhibits a more evolved interpretation of the right to
privacy in India than that in the US. These observations are instructive in distinguishing privacy
from secrecy. The counsels for the respondents have argued both in the hearing before the
constitutional bench and before the three judge bench that claim of privacy as untenable where
individuals happily share personal data while accessing online services. 19 However, it is
important to note that privacy is fully compatible with the circumstances in which individuals
may share their data by providing informed consent for specific purposes.

The idea of informed consent as central to informational privacy is the key thread that runs
across the different opinions in the judgment. This point is relevant to the current debates
regarding the nature of data protection law that India should about. While the principles of nature
and consent are essential to most data protection frameworks across the world, there have been
proposals in India to move beyond it. It must be remembered that this judgment has held that
privacy is both a negative and a positive right, meaning that not only does it restrain the state
from committing an intrusion upon the life and personal liberty of a citizen, it also imposes an
obligation on the state to take all necessary measures to protect the privacy of the individual. The
unequivocal endorsement of informed consent in this judgment could leave any existing or future
laws governing data collection which fail to recognise the principle of informed consent
susceptible to legal challenge in the future.

This judgment is significant in its recognition of the threats to informational privacy in the digital
age. In Part ‘S’ of Chandrachud J.’s opinion, the judgment considers ubiquitous data collection
in a networked society, digital trails of people’s online activities, algorithmic analyses of data
and metadata collected, the relative invisibility of access and processing of electronic data, the
18
Collector v. Canara Bank, (2005) 1 SCC 496
19
“Citizens do not have fundamental right to privacy: Centre tells SC” The Hindustan Times, July 23,
2015, available at http://www.hindustantimes.com/india/citizens-do-not-have-fundamental-right-to-
privacy-centre-tel ls-sc/story-ykRepEFYCvWteceqLNuz9O.html
recombinant nature of data and the building of profiles through data aggregation. This is the first
instance of the recognition of threats of privacy in the age of big data and algorithmic decision
making by the Supreme Court and differences between volunteered data, observed data and
inferred data. These observations would be of great value in future cases where the extent and
nature of data collections and processing may be considered before the court.

c) DECISIONAL AUTONOMY
Prior to this decision, the Supreme Court had not clearly established a right to decisional
autonomy as a part of the right to privacy. However, they have, on various occasions recognized
the choice of individuals as integral of the right to privacy including women’s reproductive
rights,20 dietary choices,21 and the choice of gender.22 However, due to the lack of a clearly
established right, the jurisprudence on this matter is fraught with inconsistencies, most notably
the Koushal decision23 which refused to acknowledge a person’s autonomy to choose non-
heterosexual relationships.

It in this regard that this judgment’s clear and emphatic recognition of decisional autonomy, and
the criticism of Koushal as a discordant note in the court’s jurisprudence, is most significant. The
observations on decisional autonomy will be instructive with regard to a number of matters the
court decided such as the review petition in the Koushal case, the constitutionality of marital
rape, beef bans under Maharashtra’s Animal Preservation Act and annulment of a marriage by
the Kerala High Court in the Akhila/Hadiya matter.

The formulation of the decisional privacy in the broadest terms possible is in line with this
judgment’s view of holding the individual as central to the constitutional scheme:

“decisional autonomy comprehends intimate personal choices such as those

governing reproduction as well as choices expressed in public such as faith or
modes of dress..The inviolable nature of the human personality is manifested in the
ability to make decisions on matters intimate to human life.. Privacy enables each
individual to take crucial decisions which find expression in the human personality..
[It] includes various facets of life including what and how one will eat, the way
one will dress, the faith one will espouse and a myriad other matters on which
autonomy and self-determination require a choice to be made within the privacy
of the mind.”

20
Suchita Srivastava v Chandigarh Administration, AIR 2010 SC 235.
21
Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, AIR 2008 SC 1892.
22
National Legal Services Authority (NALSA) v Union of India, AIR 2014 SC 1863.
23
Suresh Kumar Koushal v NAZ Foundation, (2014) 1 SCC 1.
 SCOPE OF RIGHT TO PRIVACY
The questions of the existence of the right to privacy, its sources in the Constitution, and its
structure are incomplete without a discussion into the scope of the right, and in what
circumstances may these rights be limited. Fundamental rights are not absolute, and may be
restricted by the state in certain circumstances, therefore, among the most significant
questions in the applicability of fundamental rights, is their extent and scope, and how and
when may they be limited by state actions. It is precisely this aspect of the right which will
determine what kinds of state actions are liable to be read down when they come in conflict
with this right. Perhaps, the most important observation about the right to privacy by this
bench has been to not read privacy merely as a right under Article 21, but its intimate
connection to various rights in Part III. Therefore, as Nariman J. states in this judgment,
“when it comes to restrictions on this right, the drill of various Articles to which the right
relates must be scrupulously followed.”

1. THE STANDARD OF ‘ARBITRARINESS’ UNDER ARTICLE 14

a) THE OLDER ‘CLASSIFICATION’ TEST

In its early years, the Supreme Court evolved a positivist and formalistic test of ‘classification’
for examination of laws against the right to equality under Article 14 and the anti-discrimination
provisions under Articles 15 (1), 16 (2), and 29 (2). This test essentially asked the following
questions: (i) whether the classification made by the law in question was based on an intelligible
differentia; and (ii) whether the classification had a reasonable nexus with the object the law
sought to achieve. The primary limitation of this test was the assumption that the right to equality
is invoked only when the state engages in a ‘classification’ activity. Tarunubh Khaitan has
distinguished between the action-regarding doctrines such as the equal treatment principle in this
case, and the non-action-regarding equal situation principles which would have tackled an
unequal state of affairs rather than merely unequal treatment.3 Further, the second part of the test
is also limited in its scope by focussing on the content of the law in question and no giving due
regard to the its real world impact.

b) THE ‘ARBITRARINESS’ TEST

Responding to the issues with the classification test, Bhagwati J. in EP Royappa v. State of
Tamil Nadu,24 evolved the ‘arbitrariness’ test. Future cases such as Maneka25 and Ajay Hasia26
have affirmed this test. The standard of arbitrariness required that if a law was “disproportionate,
24
(1974) 4 SCC 3.
25
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
26
Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722
excessive, or otherwise manifestly unreasonable“, then it would be struck down under Article 14.
This test, thus, move beyond the limitations of the classification test and deals with equal
situation as opposed to equal treatment. In the earlier hearings before the court on the validity of
Section 139AA of the Income Tax Act which made Aadhaar mandatory for filing of income tax
returns, the counsel for respondents had arguing that the ‘arbitrariness’ test was no longer valid
on the basis of Rajbala v. State of Haryana. 27 It must be pointed out here that the court’s
reasoning in Rajbala was based on State of Andhra Pradesh v. McDowell, 28 which itself does not
reject the ‘arbitrariness’ test, rather that the mere contention of ‘arbitrariness’ does carry any
meaning unless backed by constitutional analysis. Further, neither McDowell nor Rajbala,
adjudicated by smaller benches can overturn the decision in Royappa which was a decision by a
five judge bench. It is in this light that we see a spirited revival of this test by Nariman J. in the
triple talaq judgment.Nariman J. held that arbitrariness had always been a ground of legislative
review under Article 14, and judgments which held otherwise were incorrectly decided.

Chelameswar J. clearly holds that the options canvassed for limiting the right to privacy
include an Article 14 type reasonableness enquiry. Therefore, unreasonable classification as
well as arbitrariness under Article 14 remain grounds under which a law limiting privacy
may be challenged.

2. RESTRICTIONS AS PER THE PROVISIONS OF ARTICLE 19

The US courts considered two different conceptions of privacy in ACLU v. Clapper, and
Klayman v. Obama. It was argued in these cases, that apart from the Fourth Amendment
conception of privacy related to the powers of search and seizure, there was also the First
amendment conception of privacy which related to the chilling effects on free speech and
expression as a result of losses of privacy.

In India, prior to RC Cooper and Maneka, the constitutional position was that Article 19 and
Article 21 do not overlap and occupy exclusive spheres. 29 The court relied on the doctrine of
pith and substance in order to investigate which right is impugned by the harms in questions,
and the corresponding articles were invoked. This position was reversed later and it was
established that that the freedoms and rights in Part III could be addressed by more than one
provision. While this is significant in our ability to locate privacy in multiple sources in the
Constitution, the doctrine of pith and substance continues to be useful in defining the
separate strands of judicial review that an impugned law must satisfy under the different
articles being invoked.

Therefore, a law which impact dignity and liberty under Article 21, as well as having chilling
effects on free speech which is protected by Article 19 (1) (a), must satisfy the standards of
judicial review under both provisions. Therefore, such restriction must satisfy the test of

27
AIR 1996 SC 1627.
28
AIR 1996 SC 1627
29
A K Gopalan v. State of Madras, AIR 1950 SC 27.
 judicial review under i)one of the 8 grounds mentioned under Art. 19(2), and ii), the
restriction should be reasonable. The Supreme Court has applied multiple standards to
determine reasonableness, including proximity,30 arbitrariness31, and proportionality. Further,
the reasonable restrictions must be in the interests of i) the sovereignty and integrity of India,
ii) the security of the State, iii) friendly relations with foreign States, iv) public order, v)
decency or morality or vi) in relation to contempt of court, vii) defamation or viii) incitement
to an offence.16 Therefore, in the case of public schemes which might have chilling effects
through the means of identification and aggregation, such Aadhaar, may be said to invoke
privacy harms as identified under Article 19 (1) (a). In such cases, the compelling or
legitimate interests test under Article 21 which are used to further the argument that such
schemes are required for ‘development’ or furtherance of other state interest which is
compelling or legitimate, is not satisfactory, as state interest is not a ground under Article 19
(2).

Similarly, privacy violations which lead to restrictions on right to assemble,32 and right to
form associations33 must also satisfy the standards of judicial review not just under Article
21, but also under Article 19.

3. THE ‘JUST, FAIR AND REASONABLE TEST’ UNDER ARTICLE 21

This position, endorsed and articulated in Gopalan, was rejected in RC Cooper and
Maneka. The other significant change in constitutional interpretation that occurred in
Maneka was with respect to the phrase ‘procedure established by law’ in Article 21. In
Gopalan, the majority held that the phrase ‘procedure established by law’ does not mean
procedural due process or natural justice. What this meant was that, once a ‘procedure’ was
‘established by law’, Article 21 could not be said to have been infringed. This position was
entirely reversed in Maneka. The ratio in Maneka said that ‘procedure established by law’
must be fair, just and reasonable, and cannot be arbitrary and fanciful. Therefore, any
infringement of the right to privacy must be through a law which follows the
principles of natural justice, and is not arbitrary or unfair.

30
Superintendent, Central Prison v. Dr Ram Manohar Lohia, AIR 1960 SC 633

31
Virendra Ojha v. State of Madhya Pradesh, AIR 2003 All 102
32
Article 19 (1) (b) of the Constitution of India.
33
Article 19 (1) (c) of the Constitution of India.
 4. THE ‘COMPELLING INTEREST’ AND ‘NARROW TAILORING’ TEST
Whether the standard for judicial review when examining laws infringing the rights to privacy,
ought to be the strict scrutiny standard, or the ‘just, fair and reasonableness’ standard remain an
open questions. The ‘compelling state interest’ test comes from the jurisprudence on equal
protection clauses. The strict scrutiny test which includes the ‘compelling state interest’ and the
‘narrow tailoring’ test is applied to classifications of the most fundamental nature. In Gobind,
the Supreme Court adopts the strict scrutiny test for laws infringing on the right to privacy. The
court held that privacy violations could be justified only if there was a “compelling state interest”
involved, and the law was narrowly tailored which meant that the state would have to show that
there was no alternate, privacy-preserving way, through which it could achieve its goals.

Sapre J.’s opinion leans in the favor of the compelling interest test and articulates a “social,
moral and compelling public interest in accordance with law” as necessary to show justifiable
limits on privacy. On the other hand, Bobde J. seems favors the ‘reasonableness’ test under
Article 21 which is a much less rigorous standard. Chelameshwar J. is the only judge who seeks
to address the confusion between the ‘just, fair and reasonable’ test and the ‘compelling state
interest’ test. According to him, only the most critical privacy claims will attract the strict
scrutiny standard while the others will only attract the ‘fair just and reasonable’ standard:

“Only in privacy claims which deserve the strictest scrutiny is the standard of compelling State
interest to be used. As for others, the just, fair and reasonable standard under Article 21 will
apply. When the compelling State interest standard is to be employed must depend upon the
context of concrete cases.”

The guidance by the judgment in determining the scope of the right to privacy stops short of
being prescriptive, and future cases which apply these principles will determine the extent of
privacy protections accorded in different cases. How the limiting tests are applied, which
standards of judicial review are used, and in case of differentiated scrutiny, how the the different
kinds of privacy are differentiated will be among the most important questions.
 CONCLUSION
Thus, we see that this judgment makes a very valuable contribution to the scope and extent of the
constitutional right to privacy, and what standard of judicial review must be applied to the state
actions which infringe on the right to privacy. By reading the right to privacy in multiple sources
in the Constitution including Article 21 and the entirely of Part III of the Constitution (including
right to freedom of association, freedom of speech, freedom of religion), as well as calling out
multiple limiting tests, the judges have strengthened this right. With more than one test of
judicial review needed to be satisfied by laws infringing upon privacy, the right to privacy has a
much greater scope. As the mandate before this bench was to rule only on the specific questions
referred to it, without taking into account any immediate facts and circumstances, the bench
could only articulate broad principles, which will have to applied in specific cases by the courts.
The scope and contours of the right to privacy will be defined through subsequent application of
the principles articulated in this judgment. What this judgment has done without doubt, however,
is to provide a strong basis for future judicial reasonings.