K.S.

PUTTASWAMY
v.
UNION OF INDIA(RIGHT TO PRIVACY)

Submitted as per the requirement of the course curriculum of

“Constitution Law - II” in School of Law

Submitted By – Submitted To –
Shushant Shubham Prof. Arpan
Acharya
L18BLB073 Assistant Professor

Introduction
On 24th August 2017, a nine-judge bench gave a verdict in the case of K S Puttaswamy vs
Union of India in Supreme Court. Supreme Court has given a judgment which held the
constitutional validity of fundamental right. The nine-judge bench held that the fundamental
rights of a right to privacy or right to privacy is a fundamental right under constitution article
21. This judgment is very important and very significant which provided a constitutional
protection of right to privacy as a fundamental right. In the case Puttaswamy we will see that
the relevance Right now right to privacy became a fundamental right and Secondly this right
to privacy was protected under article 21 of Indian constitution so this is the relevance of this
case. This case is about the natural right. Natural right means that it is inherit in all natural
persons so this right to privacy as a fundamental right that should be made available to all the
natural person. Secondly it also said that the right can only be restricted by state action only
the state or the government can restrict the fundamental right of right to privacy and also the
state cannot simply restrict this fundamental right of right to privacy but there should be
certain test or there should be certain criteria under which the any action should have a
legislative mandate that is it must be backed by a law. The restriction should be based on a
legitimate purpose so the purpose of restriction should be legitimate. Thirdly it should be
proportionate. It means that the state should have tried all the other alternative means and
only finally restrictions can be made on the fundamental right of right to privacy so all the
alternate is must be tried by the state and this should be the last resort for the government or
the state in order to restrict the fundamental right of right to privacy so this was the case and
this was a judgment given in the case that is KS Puttaswamy vs Union of India.

Facts
This case challenged the government’s Aadhaar Scheme which was proposed by government
for making it mandatory for access to government services and benefits. Aadhar has been
widely used in taking the SIM card or for getting a mobile connection for gas booking gas
connection. So, what you are doing by giving your Aadhar as an ID proofs is that you are
transferring your private information to a government agency or private agency.

So, this case was brought before the nine-judge bench of the Supreme Court that has been
setup up on reference from the Constitution Bench to determine whether the right to privacy
was guaranteed as an independent fundamental right following conflicting decision from
other Supreme Court benches.

Firstly the challenge was made before a three-judge bench of the Supreme Court on the basis
that the scheme violated the right to privacy. Attorney General argued on behalf of the Union
of India that the Constitution of India does not grant specific protection for the right to
privacy. He based this decision on observation made in the case of M.P. Sharma vs Satish
Chandra which was an eight-judge bench and Kharak Singh vs Uttar Pradesh which was a
five-judge bench. However, a subsequent nine-judge bench also found that fundamental right
were not to be construed as distinct, unrelated rights, thereby it upholded the dissenting view
given in Kharak Singh. That also formed the basis of later decision by smaller benches of the
Supreme Court that expressly recognised the right to privacy.

In this context a Constitutional Bench was set up and concluded that there was a need for a
nine-judge bench to determine if there was a fundamental right to privacy within the Indian
Constitution.

Petitioner claimed before a nine-judge bench that right to privacy was independent right,
guaranteed by the right to life with dignity under Article 21 of the Constitution of India. Then
the Respondent submitted that the constitution only recognised personal liberties which may
be incorporating with the right to privacy to a limited extent. The Court considered detailed
arguments on the nature of fundamental rights, interpretation of Indian Constitution and the
practical and theocratical bases for the right to privacy as well as the nature of this right.

Judgement
Supreme Court recognized that the constitution guaranteed the right to privacy as an intrinsic
part of the right to life and personal liberty under Article 21. The Supreme court overruled
M.P. Sharma, and Kharak Singh as latter did not expressly recognized the right to privacy.

The right to privacy was strengthened in this case by the judges' concurrent opinions, which
recognized that this right included autonomy over personal decisions (e.g. beef consumption),
bodily integrity (e.g. reproductive rights), as well as protection of personal information (e.g.
health record privacy).

Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal, and J. Nazeer): this opinion
claimed that when a person is in the public domain privacy was not completely surrendered.
In addition, it found that the right to privacy contained the negative right against State
intervention, as in the case of criminalization of homosexuality, as well as the positive right
of the State to be protected. On this basis the judges held that a data security law had to be
enforced in India.

J. Chelameswar: The judge said, in his view, that the right to privacy meant the right to refuse
medical care, the right to forced feeding, the right to consume beef and the right to show
religious symbols in one's personal appearance etc.

J. Bobde: The judge noted that consent was essential for the inherent distribution of personal
data such as health records.

J. Nariman: The Judge divided the facets of privacy into non-interference with the human
body, personal information security and discretion over personal decisions in this concurrent
opinion.

J. Sapre: The Judge noted that, in addition to its nature as an independent right, the right to
privacy included the rights of an person to freedom of speech and movement and was
necessary to meet the constitutional objectives of equality and brotherhood that guaranteed
the dignity of the person.
J. Kaul: The Judge discussed the right to privacy with respect to information privacy
protection and the right to preserve personal reputation. He said the law must provide for data
protection and regulate exceptions to national security which allow the State to intercept data.
The Court also recognized that the right was not absolute but allowed to be limited where this
was given by statute, corresponded to the State's legitimate purpose and was proportionate to
the goal it sought.

Analysis

It’s been the 3rd year now even then the Supreme Court directions in
this regard has not been legislated. That means a properly nation has
not come in place. So, this is the first thing to be done, a proper
legislation in this regard has to be in place now. Secondly, what
should this legislation include so this legislation should include
comprehensive surveillance reforms Secondly it should prohibit mass
surveillance. Thirdly an institution of judicial oversight mechanism
should be established. Now what should be the principal of this
legislation on or on what principles should this legislation be past? So
this legislation should recognise the principle that the state or the
government should be the model data controller. This is because the
state or the government is the one who deals with the personal
information of the citizens so state should be the model data
controller. These are the things that the legislation should adopt while
framing a proper legislation in the backdrop of the case Puttaswamy
v. Union of India.