Justice K S Puttaswamy (Retd.) and anr versus Union of India and Ors

The post discusses the decision of the Hon’ble Apex Court in Justice K S Puttaswamy (Retd.), and another versus  Union of India and Others, decided on 24 August,2017.

Background

In M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. , 1950 SCR 1077 , an eight-Judge Constitution Bench held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution.

In Kharak Singh vs. The State of U.P. and Ors. , 1962 (1) SCR 332 , a six-Judge Constitution Bench held that the freedom to move freely throughout the territory of India, guaranteed by Article 19(1)(d) was not infringed by a midnight knock on the door of the petitioner since “his locomotion is not impeded or prejudiced in any manner. It further held Clause (b) of Regulation 236 which provided for domiciliary visits at night was violative of Article 21.

Justice K S Puttaswamy (Retd.), and another versus  Union of India and Others –

Following aspects of privacy were discussed –

(i) Whether there is a constitutionally protected right to privacy;

(ii) 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;

(iii) the doctrinal foundations of the claim to privacy;

(iv) the content of privacy; and

(v) the nature of the regulatory power of the State.

Order of the Apex Court (Para T) – 

The Nine Judge Bench comprised of CJI JS Khehar, Justice Chelameswar,  Justice K Kaul,  Justice D Chandrachud,  Justice K Agrawal, Justice A Bobde,  Justice A Nazeer, Justice DY Chandrachud,  Justice AM Sapre. The Bench held as follows-

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

(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution 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 and as a part of the freedoms guaranteed by Part III of the Constitution.

(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

Major Observations in the Judgment of Justice S.Abdul Nazeer –

  • The basic question whether privacy is a right protected under our Constitution requires an understanding of what privacy means. For it is when we understand what interests or entitlements privacy safeguards, that we can determine whether the Constitution protects privacy. The contents of privacy need to be analysed, not by providing an exhaustive enunciation or catalogue of what it includes but by indicating its broad contours. (Para 7)
  • Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. (Para 168)
  • Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture. (Para 169)
  • Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. (Para 157)
  • It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals. (Para 157)
  • The emergence of new challenges is exemplified by this case, where the debate on privacy is being analysed in the context of a global information based society. In an age, where information technology governs virtually every aspect of our lives, the task before the Court is to impart constitutional meaning to individual liberty in an interconnected world. While we revisit the question whether our constitution protects privacy as an elemental principle, the Court has to be sensitive to the needs of and the opportunities and dangers posed to liberty in a digital world. (Para 2)
  • Technology, as we experience it today is far different from what it was in the lives of the generation which drafted the Constitution. Information technology together with the internet and the social media and all their attendant applications have rapidly altered the course of life in the last decade. Today’s technology renders models of application of a few years ago obsolescent. The Constitution’s continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering. (Para 151)
  • Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21). (Para 96)
  • The sanctity of privacy lies in its functional relationship with dignity. (Para 113)
  • To recognise the value of privacy as a constitutional entitlement and interest is not to fashion a new fundamental right by a process of amendment through judicial fiat. Neither are the judges nor is the process of judicial review entrusted with the constitutional responsibility to amend the Constitution. (Para 113)
  • Constitutions which, like the Indian Constitution, contain entrenched rights place the dignity of the individual on a high pedestal. Despite cultural differences and disparate histories, a study of comparative law provides reassurance that the path which we have charted accords with a uniform respect for human values in the constitutional culture of the jurisdictions.

Why Privacy is paramount as a right

(a) It enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. (Para 168)

(b) The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. 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. (Para 168)

(c) Privacy represents the core of the human personality and recognizes the ability of each individual to make choices and to take decisions governing matters intimate and personal. (Para 169)

(d) Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognizes the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so, privacy recognizes that living a life of dignity is essential for a human being to fulfill the liberties and freedoms which are the cornerstone of the Constitution.  (Para 113)

Evaluation

The right to privacy is one of those rights that would be relevant for years to come. The Apex Court once again liberally interpreted Article 21 of the Constitution of India. The order is appreciable as it clearly and expressly over-ruled two previous judgments on the right to privacy. The decision has made it clear that human dignity and privacy are inter-related. The decision elaborated the various reasons as to significance of privacy for an individual.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in research and writing on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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