Justice (Retd.) K. S. Puttaswamy v. Union of India: Right to Privacy is a Fundamental Right - The Red Carpet

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Tuesday, September 22, 2020

Justice (Retd.) K. S. Puttaswamy v. Union of India: Right to Privacy is a Fundamental Right

 

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Introduction

On the 24th of August, a nine-judge bench of the Supreme Court rendered its judgment in Justice (Retd.) K.S. Puttaswamy v/s Union of India1. This judgment is a result of a constitutional battle considering the question of the right to privacy. The question of the right to privacy has been raised before the Supreme Court in several cases since the independence of India and it has been run as a vague and undecided question until this historical and landmark verdict.

In 2015, when the Attorney-General of India argued in the well known Aadhaar Scheme Case that the constitution of India did not guarantee any fundamental right to privacy, the three-judge bench hearing the case referred this question to a five-judge constitutional bench which, in turn, ultimately referred it to a larger bench of nine judges. Where five out of nine judges delivered separate opinions and another one operative judgment came from Chandrachud J who wrote this on the behalf of himself and three other judges including CJI. The judgment touches all facets of the right to privacy and held that the right to privacy is a fundamental right guaranteed by the constitution of India.


Issues

The Supreme Court was dealing majorly on three issues in this case following:

  1. Whether the decision in M.P. Sharma v Satish Chandra is correct in law.

  2. Whether the decision in Kharak Singh v State of Uttar Pradesh is correct in law.

  3. Whether to right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 and a part of the freedoms guaranteed by Part III of the Consitution.

Background of the Cases in Question

The M.P. Sharma2 case was mainly concerned with the fact that the union government ordered to an investigation under the Companies Act into the affairs of a company which was in liquidation on the ground that it had made an organized attempt to embezzle its funds and to conceal the true state of its affairs from the share-holders and on the allegation that the company has indulged in fraudulent transactions and falsified its records. The records of the company were seized making effective the ordered investigation.

The company challenged this investigation on the ground that the searches violated the fundamental rights under Article 19(1)(f) and Art 20(3) of the Constitution. The Supreme Court rejected the challenge under Article 19(1)(f) and held that a search or seizure does not infringe the constitutional right guaranteed by Article 20(3) of the Constitution. The Court observed that “there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same”3.

The Court went to the extent to take a stand on the right to privacy that “when the constitution-makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the fourth amendment, we have no justification to import it, into a totally different fundamental right”.4 The right to privacy in this had not been successful to make strengthened its position under fundamental rights.

Another case in question is Kharak Singh5  which was concerned about the state surveillance on the person’s locomotion against whom a “history sheet”6 had been compiled by the police and was released for want of evidence. He was subjected to regular surveillance, including midnight knocks. He moved to the Supreme Court that his fundamental right under Article 19(1)(d) was infringed by a midnight knock on the door.

The Court 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.7 However, the Court held that clause (b) of Regulation 236 which provided for domiciliary visits at night was violative of Article 21.

We can see in the judgments of these two cases left the question of the right to privacy in vague interpretation and did not disclose the full identity of this right whether it is accepted as a fundamental right in the Constitution. The K.S. Puttaswamy judgment leads us on an explicit and perspicuous path with the intelligible reasoning and crystal clear determination that the right to privacy is a fundamental right as the dignity of the human being and construed in the Article 21 of the Constitution.



Commentary

The argument of the Attorney-General that the Constitution did not guarantee any fundamental right to privacy is rightly rejected by the Court. The established doctrine in the Maneka8 case is that the expression ‘personal liberty’ in Article 21 covers a variety of rights. So, the AG sharply could not have made a contention that the right to privacy does not have any place in the Constitution. Albeit the Solicitor-General made a little strong argument that the right to privacy may be a natural right but it was not construed in the Constitution as a fundamental right. But these both arguments have not been successful to turn the table on their side. Mainly the State’s contention was in reference that the Supreme Court in M.P. Sharma(supra) and Kharak Singh(supra) had held that there was no fundamental right to privacy under the Indian Constitution, and all subsequent judgments to the contrary had been decided by smaller benches.

The AG took another view to support his contention that the debates in the Constituent Assembly on this subject reveal that the Farmers rejected the right to privacy being made part of the fundamental rights under our Constitution. This contention also does not stand out with the time. The time of these debates was far behind about 70 years ago. Plenty of numbers of technological advancements have been taken place since then and are continually growing with the number of effects on the lives of human beings.

There are many aspects of a man’s personal life which he doesn’t want to show in public but the technological tools may obstruct his willingness not to put his conduct of personal instincts in the public domain. The AG didn’t take a view of the condition that what if the State tries to make such intrusion that can disturb a person’s intimations.  Chandrachud J seems to counter the contention of AG by citing an article published in the Harvard Law review in 2013: “when privacy and its purportedly outdated values must be balanced against the cutting-edge imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser. The list of privacy counterweights is long and growing. The recent additions of social media, mobile platforms, cloud computing, data mining, and predictive analytics now threaten to tip the scales entirely, placing privacy in permanent opposition to the progress of knowledge”.9

The right to privacy has two facets of its qualitative relationship those are described by Mr. Kapil Sibbal in his written submission to assist the Court that: one, between the citizen and the State; the other between citizens and non-state actors. The fear intrusion in the right to privacy does not take under the State only but non-state entities can also become profit-holder by this intrusion. That’s why the demand for strict data protection laws in India is taking place for the protection of the citizen’s private sphere.

Technological advancements have taken us to such an extent where data collecting companies do know about us more than our peers and families. Mr. Sibbal rightly described this fear in his submission that the data shared for getting a passport is for the specific purpose of exercising the fundamental right of citizens to travel. If any other organ of the State accesses that data and breaches confidentiality between citizens and such authority, that per-se would be an invasion of the right to privacy.

Conclusion

Personal liberty and the freedom to perform an activity is a prerequisite condition for a living being. One should have his or her right determine what comes in his or her personal sphere of affaires. This case has given an historic balance between the attack of a State on the individual autonomy and personal liberty to perform what is really personal. The question is still remained unanswered that when would it be determined if someone’s right to privacy exceeds from the ambit of private. The draw-stick between the private and public life is still vague. Can someone perform its right to privacy in public sphere also?

Finally Indian citizen came to the judgment that was needed in their societal interactions. We have seen its impact in latest judgments of Navtez Johar10 that is quite progressive and timely decided case considering to the some extent to right to privacy. Now it is the time that would determine the left questions and the actions and tolerance of the State and non-state entities on how they perform on the guiding path this historical judgment.


Works Cited

1. Justice (Retd.) K.S. Puttaswamy v Union of India, WP (C) 494/2012

2. M P Sharma v Satish Chandra, District Magistrate, Delhi, (1954) SCR 1077

3. M P Sharma, at page 1096

4. M P Sharma, at page 1096-97

5. Kharak Singh v State of Uttar Pradesh, (1964) 1 SCR 332

6. ‘History sheets’ were defined in regulation 228 of Chapter XX of the U P Police Regulations as “the personal records of criminals under surveillance.

7. K.S. Puttaswamy (supra), at page 12

8. Maneka Gandhi v Union of India, (1978) 1 SCC 248

9. Julie E Cohen, “What Privacy Is For”, Harvard Law Review (2013), Vol. 126, at page 1904

10. Navtej Singh Johar & Ors. v Union of India through Secretary Ministry of Law and Justice, W. P. (crl) No. 76 of 2016 D. No. 14961/2016


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